Storage US 909.2 LAM Wit, wisdom and philosophy, HARVARD LAW LIBRARY APM7604 3 2044 031 816 598 WIT, WISDOM AND PHILOSOPHY "A clock that stands still will be right at least twice a day. A clock that but runs lamely may never tell the truth." LAMM C. J. 10 ， ， - རྔ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ ་ པ ་ས་ ་ཙ མ་ ་ ་ ་ རོ་ རོ་ – • • - ༢ C & kamw, Henry WIT, WISDOM AND PHILOSOPHY Selected and Arranged Fred . Mullinix “That which cannot be done in a straight line (as the bee flies) cannot be done in a circle (as the fox runs).”. LAMM, C. J. us 909.2 LAM L232 COPYRIGHT 1918 By FRED C. MULLINIX MAY 1919 ST, LOUIS, MO. Nizon-Jones Printing Co., 1918 PREFACE This volume is composed almost entirely of data selected from legal opinions written by Henry Lamm, who was first Associate and then Chief Justice of the Supreme Court of Missouri, com- mencing his term of office in 1905, his term expiring in January, 1915. A year later, as the result of much urging, he ran for the office of Governor of Missouri, for which office he was defeated by a very small majority. The style of these opinions is a departure from the usual legal opinion. In fact, so attractive are some of them, they may be read by all with great satisfaction and without jade. In his writing he dipped deeply into literature, and his arrange- ment and verbiage is such that it fascinates the lay as well as the legal mind. He resorted to many “homely' phrases in bridging that space between understanding and misunderstanding in order that the viewpoint might be met with instantaneous effect. His idea of a legal opinion, when the situation in his estimation demanded it, may be best illustrated by his reference to one of Aesop's fables, the fable of the man and the satyr: ". . . it being permissible we think to levy on and seize a parcel of the homely wisdom of these immortal fables to point a moral in the law now and then—for may not a judicial wayfarer, traveling in the dry and dusty highways of the law, at spells lighten his labor without lowering the dignity of his case by gathering a nosegay for use as do other wayfarers, so long as he does not loiter a-field and miss the main traveled road to ultimate justice.” In account- ing for the use of such similitudes he explains, “. .: in a pinch, in court or out, much is seen through a keyhole, or put otherwise, some one illuminating fact often throws a gleam of light into the obscure corners of litigation to aid the eye of a chancellor, pre- cisely as a flash of lightning on a dark night reveals the land- scape to a bewildered traveler.” He denied that “the atmosphere of the plane on which a court moves is ... so frosty that no buds of sentiment may swell and bloom there.” He felt that he might add to "the innocent gaiety of mankind” and resort to a “trick of speech” occasionally, or use “a poetical apostrophe to the Bible, most becoming and tenderly reverential," a "homely Preface illustration of everyday life,” or something from the “well of the drama,” for better illustration. From the reading of these opinions it is evident that he felt that the courts and the people were too far apart; that technicality and delay in the administration of justice were responsible for certain prejudices. He spoke of one case “pending nearly as long as the Greeks besieged Troy." And again he said that “justice must not be sacrificed upon the sharp edge of technicality,” and that "technicality may become a horse, which once astride and well ridden, will carry us wide of ultimate right.” That these exist- ing prejudices were not all due to the system of jurisprudence, he said, but somewhat to the “vulgar and pernicious fallacy that a law suit on appeal is a mere game of wits to be played according to highly artificial rules, over which 'game' we sit as mere umpire according points to one player or another by the dry and lifeless rules of the game for the sake of the game itself.” That there existed an “amusing delusion abroad in the land to the effect that guessing is a working tool in administering law,” which he answered as follows: “Alas! How often must wisdom cry aloud in the streets and proclaim it from the housetops that the law is the perfection of reason ?” That if guessing could be a working tool, and “if guesses were horses, every judge would gaily ride." His use of the Bible, and his comparison of some of the charac- ters of that time with the position of litigants before him, is indeed entertaining. His deep learning in law and literature is manifest in his masterly opinions, of which the matter in this book is only excerpts, and he has accomplished the seeming impossible, often so unsuccessfully attempted by lesser lights of the judiciary, in in- jecting the finest gems of humor in the most masterful analyses of the law without weakening the force of his logic or descending to clownishness. Withal he wrote the law purely. The mode of appropriating some of the famed quotations of all time, and after a manner, transforming them into a parody for legal use may be best illustrated by what follows under the head of Proverbs. F. C. M. JONESBORO, ARK. December, 1918. Proverbs Parsnips Liberty has no price. Turn about is fair play. The law regards not trifles. Fine words butter no parsnips. A wrong is not to be presumed. Labor accords with divine law. Drowning men catch at straws. Where reason ends the law ends. Libel may lurk in ironical words. The unexpected always happens. Appellate courts know geography. The law allows the dog his first bite. The extremity of justice is injustice. Right, too rigid, hardens into wrong. Enough specks make an apple rotten. The law favors and nourishes charity. Justice must not be sacrificed to courtesy. He who excuses himself, accuses himself. A thistle is a fat salad for an ass' mouth. The mule don't kick according to no rule. Speak in few words and home to the point. To stick in the letter is to stick in the bark. Every dog is entitled to at least one worry. Laws are made lest the stronger possess all. The last refuge of a scoundrel is patriotism. Equity does nothing grudgingly or by halves. Sins and debts are always more than we think. He who wants a mule without fault must walk. To be respected, courts must respect each other. A lean compromise is better than a fat lawsuit. Apple Mule Scoundrel Proverbs Furnace Plaintiffs go into court voluntarily; defendants are pulled in by the ears. It is quite as important that justice appears to be done as it is that it is done. The very old common law has been tempered and mel- lowed in modern times. Running in debt is easy and pleasant while it lasts- paying is another story. This being a court of errors, we sit to correct our own as well as those of others. No argument against the use of a thing can be drawn from the abuse of a thing. Verily, due care is the procrustean bed of the law all must lie on, nolens volens. As the furnace proveth the potter's vessels, so the trial of a judge is his reasoning. We all fancy ourselves wiser than perhaps others are willing to give us credit for. The law may as well be astute to reach and cure, as the libeler to hide and do harm. Blessed is he who knowing nothing, avoids giving wordy evidence of that fact. An eagle does not catch flies, so equity deals not with Eagle trifles in its search for fraud. Justice is not a weathercock, to veer about with the moods of the parties litigant. While the dead tell us no tales, neither can the dead defend themselves against tales. Compromise and avoid or discount certain uncertain- ties (and other ills) of litigation. A new trial is a loaf baked in the oven of the law, to be socially shared by both parties. If one is not to get a stone who asks for bread, no more is he to get water who asks for milk. The greatest happiness of the greatest number is the foundation of morals and legislation. Weather- cock Proverbs ture He who is fond of maintaining an action will soon be without means of maintaining himself. What is the rule of construction on hypocrisy, except, “By their fruits ye shall know them”? Fruits Since the twilight of remotest time, it was considered that the life of the flesh was in the blood. A homestead is so far forth forbidden fruit to the cred- itor that he may not pluck or eat thereof. Justice delayed is justice denied; fresh justice is ever sweetest; he gives twice who gives quickly. A court should not sit in the comedy of Much Ado About Nothing, if it but know it in advance. Superstruc- In the eye of the law no one can successfully build a superstructure of right upon his own wrong. Courts should not torture or twist a statute into a de- Torture vice for obtaining property by false pretenses. If one rely on instructions in equity, he leans on a broken staff, and gets the worst of it in a fall. Mote The law should first cast the mote out of its own eye before it can see clearly the beam in another's. A court cannot adjudicate negligence on pulse beats and hair splitting, such airy nothings in surmise. When fraud comes in at the door, all contrivances to consummate it fly out at the window in chancery. Liberty of the citizen is an immediate jewel of the law, to be sacredly cherished and hedged about withal. Technicality may become a horse, which once astride and well ridden, will carry us wide of ultimate right. To do nothing is wiser than to do something and not have the information, the wherewithal to do it right. Men do not usually get into trouble through logical processes, and logicians cannot always get them out. A clock that stands still is right at least twice a day. A clock that but runs lamely may never tell the truth. Proverbs Imagina- tion Voice One should not suffer his imagination to take rein from one's judgment, and rush headlong in the chase after the fox called fraud. If courts unsettle a rule of law, the door is opened wide for confusion to come in; certainty being the very es- sence of good law. The master voice of humanity cries out, and the law, an invention for the welfare of man, knows its master's voice and heeds it. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man. If a party lies in wait for his adversary, the court should not allow him an advantage that he could not have attained in the open field. If A needs a bath, may B give him one forcibly and against his will? If C needs a physic, may D assume to dose him against his will ? Verily, withal, the benefits of a new trial, like the rain and the dew, descend upon the just and the unjust, on the defendant as well as the plaintiff. A public office, speaking in colloquial figure, is a hole. An officer is a peg. Peg and hole go together, even as a pea fits the pod, or a hand the glove. When in a court of justice a man is fairly in balance with the dollar, then it is the man goes down in the scales and the dollar kicks the beam. The courts are inclined to take judicial knowledge of the fact that the traditional guile and adroitness of horse Adroitness trading are of the masculine gender. Uniformity, however serviceable, has not always been possible even in judicial exposition, although it pro- ceeds on contemplation, and not impulse. · It has never so far been held that the rules of decorum Decorum Proverbs and politeness may not be usefully applied in the court room to the weighty matters of law, as elsewhere. There is a precept that every man is presumed to know the law. It should be modified so as to read: Every man is presumed to know the law-except the road law. Strained and unnatural statute construction smacks of wringing the words so hard the meaning extracted is bitter, even as the wringing of the nose brings blood. As figs do not grow on thorns or sweet water flow from a bitter fountain in nature, so in equity a superstructure Substratum of legality cannot be built on a substratum of illegality. The right of freedom of speech, of fair comment with an honest purpose in the matter of public concern, is on the foot of pro bono publico and founded on public Foot policy. There be three kinds of unhappy men. He that hath knowledge and teacheth not. He that teacheth, and liv. eth not thereafter. He that knoweth not and doth not inquire to know. No system of laws could for one minute command a whit of respect that would add to the delays of the law the intolerable burden of reversing judgments on every error whatsoever. Breachy stock and a low or broken line fence are the Squabbles devil's own invention for discords and squabbles between coterminous proprietors—a fecund womb of a miserable brood of infelicities. It would be a bold judge who said that appellate courts had always been able to hold a steady and even voice in promulgating or applying general principles under the head of ordinary care. It cannot be denied that in the everyday administra- tion of the law through the courts, enough flotsam and jetsam may be lodged in the current of a trial to turn the stream of justice awry. Stream Proverbs 13 Wrath It is the brightest jewel in the crown of the law to seek and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free pub- lic discussion on the other. Correct reasoning leads to correct results; if then, the results be incorrect, the reasoning is bound to be un- sound; for are not the general principles of the law the very perfection of reason? Should courts whether federal or state, under a boun- den duty to proceed in administering justice with calm- ness and dignity, set out on the road inevitably leading up to conflicts in jurisdiction ? In family affairs, a soft word turneth away wrath; it takes two to make a quarrel; charity and cardinal virtue cover a multitude of faults; to forgive and forget is the golden rule of marital felicity. In statutory construction a judge is not to be like a tyrant, making all void when part is void, but like a nurs- ing father, making void only that part where the fault is and preserving the rest if he can. Miserable indeed would be our property conditions if we left the simple and safe rules of the common law to run after a will-o'-the-wisp of speculative refinements said by some to spring from comity. There may be wrinkles in a statute not yet erased by the Wri smoothing iron of justice, for there is an intense human factor in the practical application of statutes appealing to different judges in a different way. Equity as a code of conscience, takes cognizance of more delicate distinctions between right and wrong in human conduct, and enforces a subtler morality than the traditional practice and procedure of courts of law. It is by recognizing both great and small, public and private right, and holding the scales even between the two that courts by approximation get at just and prac- tical results in suits between the public and individuals. Wrinkles Delicate 14 Proverbs May two courts proceed on contrary theories at the selfsame time, and grind a litigant between the upper and nether millstones of jurisdiction, one saying aye and Millstones the other nay, and each speaking in an imperative voice? It is old and seasoned learning that, as the laws of men presumably are founded on natural justice and reason, courts search as with a lighted candle for the reason of the law, and, when found, put it as a part of the law itself. · Priests Judges may be likened unto priests attending between the horns of the altar of the Temple of Justice. So, at- tending, they stand solemnly charged with keeping the lamp of personal liberty in oil, well trimmed and brightly burning. The beautiful character of pervading excellency, if one say so of equity jurisprudence, is that it varies its adjustments and proportions so as to meet the very form and pressure of each particular case in all its complex habitudes. If in the pursuit of fraud, two judicial views are open on the facts, one in favor of honesty, the other contra, the law (an invention of men for their welfare) but agrees with human nature in saying we must take the nobler view. There are presumptions springing from the loins of noble maxims which are the crowning glory of our law, viz.: that the law presumes innocence, not guilt; moral- ity, not immorality; marriage, not concubinage; legiti- Marriage macy, not bastardy. Drinking makes some men surly, ugly, unaccommodat- ing, and obstinate; some mellow, merry, and yielding; Vivacious some vivacious and witty; some stupid and sodden; and since the days of Noah to this day, all men the worse off in the long run. From the highest reasons of public policy and social Proverbs 15 justice homestead laws are favored by the courts, and are always to be construed with liberality to further their benign purpose, in creating self-reliant home owners, rooted to the soil. Close observers of the phenomena of human nature have noticed that sometimes quarrels exhaust themselves with excess of fervor, and thereby die out. So, perad- venture, pots (boiling too fiercely) boil over, put out the fire underneath, and cool off. If a case be in court at one time by grace of a techni- cality, it may be put out of court at another time by grace Beauty of another technicality, because thereby the beauty and evenhanded symmetry of the law (it being no respecter of persons) is made manifest. Is it likely the lawmaker cunningly hid away the meaning of his law in a word of not only one syllable, but of one letter—a meaning to get at by boring with a gimlet of grammatical construction ? That would be to try to stand a cone on its apex. Many a man lies who down in his soul believes in truth- fulness; and drinks who by precept teaches the virtue of soberness; and has a peppery disposition who believes in calmness; and sins who thinks well of righteousness; and is lazy while lauding ant-like industry. Posterity would think ill either of the candor or under- standing of a court that would hold one voice before election, to wit, to make straight the way for a ticket, and another and different voice after election, whereby the voters so authorized would be disfranchised. In the law there is a presumption in favor of inno- cence. It is familiar doctrine of everyday use in the ad- ministration of justice that, if a transaction comports as well with honesty as dishonesty, then the law takes the nobler and the better view of the transaction. Dishonesty The administration of justice is a practical affair, an 16. Proverbs Close- fisted Comma ment Darkness invention for the adjustment of the rights of individuals and not a technical and accurate science, but an applied Science science, adjusting itself to work out justice in all the protean shapes the dealings of mankind assume. Is a cheeseparing, close-fisted father who hoards like a miser, of more pecuniary value to a mother and child than an open-handed, great-hearted gentleman whose earnings during life flow for his household as unchecked and ungrudgingly as does the love he bears them ? If a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed in the court of Heaven, but his slips are not less troublesome to his neighbors than if they sprang from guilty neglect. When a proposition of law has once been fairly formu- lated and given, to turn about and couch it in a differ- ent and more learned phrase is but tending to create darkness, to obscure the issue by a too great wealth of words, as many leaves conceal the apple on the bough. To make a clerical mistake fatal, such a pen slip on appeal would be to let a mere pin prick of inadvertence hide the very right of the matter, even as the cloud the Hebrew prophet saw, on the rim of the horizon, of the size of a man's hand, spread presently and shut out the sky. Elevated and uniform justice could not be adminis- tered without rules. If there were no rules, we would be governed by men, not laws. The main thing is justice itself, the very right of the matter. The rules are only in aid of that main thing—the working tools whereby it is obtained. As far back as the trained eye of the student may pen- etrate the dimness which time spreads like a mist over the past, it would seem that mankind with one accord, has been fond of visible tokens, signs, and memorials Proverbs - - Command- ment exciting the memory and perpetuating evidence of con- tracts and covenants. To dangle a pardon for a thief before the eyes of his Pardon low companions and friends, as an inducement for their votes at a public election, as one would hold out an ear of corn to an ox or ass to halter him, debauches public morals, hamstrings civic virtue, and militates against the best interests of society. In equity there is danger that advantages may be taken of the ignorant, the confiding and helpless by those who promise, reap performance, and then procrastinate, dally, and die without living up to the great command- ment of the law, to wit: To do just and right, and to render to every one his due. Is there not a strong presumption, to be indulged in by seekers after truth, that a conclusion is right which has been arrived at by the trained minds of many just men in possession of all the facts and in full light of pos- sible reasoning (pro as well as con), and unreservedly acquiesced after re-examination ? There is an amusing delusion abroad in the land to the effect that guessing is a working tool in administering law. Alas! How often must wisdom cry aloud in the streets and proclaim it from the housetops that the law is the perfection of reason? Peradventure, if guesses were horses, every judge would gaily ride. Much dissension in family matters in court, may be referred to that inflammation springing not infrequently in persons of a certain temperament and environment when the sweet milk of domestic love and felicity is Felicity changed into the gall and bitterness of discord and angry strife over antagonistic claims to property. He was guilty of no error, he was charged with no ex- aggeration, he was betrayed by his fancy into no meta- phor, who once said that all we see about us, kings, lords, U Proverbs and commons, the whole machinery of the state, all the Apparatus apparatus of the system, and its workings, aid in simply bringing twelve good men into the jury box. Where the weak, the illiterate, the confiding, the cred- ulous are opposed in a challenged contract to the strong, the educated, the reliant, and the shrewd, equity broods over the transaction with anxiety and watches it with vigilant and jealous eye to see that no unconscionable advantage is taken unintentionally, or results with in- tention. As well require a solemn allegation or proof that fish swim, or that birds fly, as to require allegation or proof that a going railroad corporation is doing what it is born to do, to wit: engage in interstate commerce, when the alluring gains of such traffic are spread like a feast be- fore its eager corporate eyes and nothing nigh to hinder. Courts are a little inclined to take judicial notice that, barring a mild and (it may be) innocuous form of exag- Exaggera geration in narrating personal exploits (noticed by close tion observers and shyly commented on now and then in pri- vate discourses), neither huntsmen nor fishermen are ad- dicted to the venal vice of fraud for gain in matters per- taining to their associated dealings. No mortal judge is allowed to be so incomparably re- condite and ready as to know all the law all the time. If he but know all the law some of the time, or some of the law all the time, or some of the law some of the time (thereby putting himself outside the class of those who know none of the law none of the time), he rises to a per- High- missible high-water mark of excellence. water · Law, having to do with the practical, everyday affairs of mankind, should subserve the ends and purposes of good sense and broad justice, not those of mere logic, though, when the two go hand in hand, they are a help- Hand- ful and pleasant pair of judicial handmaidens, and, per- maidens Proverbs 19 Floodgate adventure, when they sit smiling, as they often do, on either side of a good judge at labor, he feels restful. Where a plaintiff has been put in a perilous situation by a defendant, a court of justice moving on common sense lines, is not to quibble or niggle about the plain- tiff's conduct, and with speculative daintiness measure it by two or three pulse beats and construe it sourly and narrowly in order to relieve a defendant who negligently brought a situation about that would try the soul of any man. If the old channel of the law is to be quite changed by the application of a new doctrine automatically and with- out discrimination, if sentimental considerations (how- ever elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be raised, letting in strange and deep waters for the land owner to struggle with. Slander merely falls upon the ear, and the agency of the wrongdoer in inflicting injury comes to an end when his utterance has died on the ear, but not so with libel, which may pass from hand to hand indefinitely, and may renew its youth, so to speak, as a defamation as long as Defamation the libel itself remains in existence, and hatch a new crop of slanders, to be thrown hither and yon like this- tledown at its every sight. May not one with propriety (when the yeast of rad- ical novelty is working in judicial dough and one does not know what the loaf to be baked in the oven of events may be) take leave to recur to first principles and ob- serve, to wit: that the invention of a jury to weigh and determine the credit due to human testimony, and settle facts in doubt or dispute in a trial at law, is to be rightly taken as one of the splendid achievements of civilized man? Proverbs Jealous The wise rule in equity is that since the intimate rela- tion of husband and wife affords a convenient and often- used opportunity and vehicle for fraud on creditors, transactions between husband and wife in property mat- ters are to be scanned with jealous and discriminating eye by a chancellor when questioned by creditors, and the very marrow of the matter is to be searched to dis- cern the true intentment of the thing, to the end that it may be held good or bad as just equitable considerations point. COMPILER’S NOTE.-If the reader wishes to refer to a case from which any excerpt comes, note the page of this book on which you may be reading, and then turn to the case index in the back of this volume, find that page number and opposite is the style of the case. Wit, Wisdom and Philosophy Jones Bub, Bill or Buck Mike Angelo or opprobrious appellation. Webster's International Dic., tit. “Nickname'. As such appellations they have no place in those judicial publications of notice by which courts acquire jurisdiction. Otherwise we would have Amelia Jones notified by an order of publication directed to 'Sis' Jones; or William Brown under the title of Sis ‘Bub' or 'Bill' or 'Buck' Brown; or if the hypothesis be Job indulged that the master sculptor and painter were Master alive and so fortunate as to own his real estate in Mis- Sculptor souri, he would be brought in under the name of ‘Mike' Angelo; or Winfield Scott (in like hypothesis) under the name of 'Fuss-and-Feathers,' or 'Hasty-Plate-of-Soup' Scott, or Thomas H. Benton as ‘Old Bullion' Benton. We cannot find it ever ruled by any respectable court that 'Mike' is a universally known abbreviation of ‘Michael'. We are asked to take judicial cognizance that it is a universally recognized equivalent of that name. We decline to do so. It is sometimes used flippantly to designate any one, as in the colloquialism, ‘Sure Mike,' or in another, 'Are you Mike?' or 'You think you're Mike.' But this figurative and slangy use is too broad and proves too much. We are of the notion there is some- thing Celtic about ‘Mike'-a tang of flavor of the old sod—and that its usage among Teutons is either malap- ropos, mythical, or scant. The name “Michael Ohlmann' is self-evidently German, and we have no call to judi- cially determine ‘Mike'as applicable to a nationality not shown to have adopted its use at the fireside as part of the mother tongue. But we have pursued the matter far. We think the deed was void, because the Reynolds circuit court never acquired jurisdiction over Michael Ohlmann.” AGENCY “The doctrine of the law that forbids an agent to buy from or sell to himself is not necessarily based on the idea that such deal in dirt is (to speak colloquially) a Deal in Dirt Wit, Wisdom and Philosophy Eye Single 'dirty' deal; that is to say, resulted in an injury to or a Dirty fraud upon him. But is rather based on the idea of clos- Deal ing the door to the temptation to commit fraud. It tends to keep the agent's eye single and clear to the rights and welfare of his principal. To allow one acting in the fiduciary relation of agent to buy from or sell to himself is a solecism in the realm of law; for the moral stamina Moral of the average man is inadequate to preserve a fine glow care Stamina of fidelity to his trust and confidential relation in such transaction, and the interdiction is enforced with a strong hand in courts of justice.” Solecism Fine Glow MATRIMONY ament Solemn Sanctions cance “Matrimony is a status so vital to the welfare of the state and society that, in the laws of some civilized na- tions, it is a holy sacrament, and draws tenderness, Holy beauty, health and vigor from the solemn sanctions of Sacr religion itself. This is shadowed forth by our statute permitting marriage to be solemnized by ministers of the gospel. Doubtless even those who stickle for the view that marriage is a mere civil contract, and not a whit Senti. more, would hesitate to strip it of the sentimental sig- mental Signifi- nificance of grounding it on or, more accurately speak- ing, solemnizing it by, religious rites as our present stat- ute allows. It was said of an old Greek, whose name I have forgotten, that being shipwrecked, and swimming to an unknown shore, he presently discovered geomet- rical figures sketched upon the sand, whereat he fell upon his knees and thanked his gods that in his extrem- ity of fortune he had reached a land inhabited by Greeks. “If such reasoning castaway had reached a land where there was no regulation of marriage by manners, maxims, customs, ordinances, and laws, he would have known by that token he had come to one of stark savagery or bar- Stark Savagery barism. The old Roman maxim was that marriage ought " Geomet- rical Figures Wit, Wisdom and Philosophy Dreamers Exploded Notion to be free. ‘Matrimonia debent esse libera.' The Roman idea was broad enough to include voluntary divorces, with a voluntary right following voluntary divorce to take another wife—a loose application of the maxim ut- terly abhorrent to modern civilization as a whole—one now entertained only by those whimsical and inconse- Inconse- quent quent dreamers, who, amusing themselves with theories Ør beyond the boundary of common sense, like Dr. Holmes' silly hen that often cackled when she laid no egg, cackle when they revamp some outworn and exploded notion, and dub it reform, progress, or whatnot.” In a suit to break a will the heirs were divided in their contentions as to the correct explanation of certain terms contained in the will; some claiming that the correct in- terpretation would be favorable to them while others de- nied that to be true, there also being accusations of fraud, the court wrote as follows: “This explanation, vague as it is, and itself crying for explanation, seems to have satisfied respondents; and, as they allowed the whole matter to sleep in the obscurity Insoluble of insoluble mystery, we feel no call to disturb its slum- Mystery bers ... to the contrary, in the light of the testimony, H. stands with clean hands, four-square to every wind of legal criticism that can legitimately blow, and altogether rectus in curia. So that the will cannot be upset on ac- count of fraud in its genesis.... He could neither read, write nor cipher, and the vicissitudes of married Hostages life had been none the less dramatic because of his hum- to ble station, for he gave hostages to fortune by three mar- Fortune riages, had issue by each, and betimes was sorely pinched by the shoe of matrimonial infelicity. ... It would be a startling infringement upon the innocent gaiety of mankind to determine judicially that reconteurs (of any degree) must repeat their favorite stories only under the impending danger of being finally adjudged not only guilty of intellectual staleness, but of actual imbicility Clean Hands Matri- monial Infelicity Wit, Wisdom and Philosophy 25 Bowels of Compas- sion and consequent testamentary incapacity, or an anxious grandfather may not call his truant grandson with an inflection of voice and a cadence of tone known to him to Inflection of Voice be effectual in producing the presence of the family watchdog without thereby furnishing legal evidence of mental aberation. And it would seem both novel and dangerous to announce from the bench the doctrine that, under no less a penalty than that of losing the right to dispose of one's property one may not tear his own or another's hair, or give notice as surety to a payee to sue, and afterwards have one's bowels of compassion moved into loaning the principal debtor money enough to pre- vent a distraint and sale on fi. fa.; or if, years after a testator has made his will, he inadvertently put on his pantaloons 'hindside before or the ills of life and the weight of four-score years cause him to lose his mental Mental reckoning at intervals, or become at times distraught, the Reckoning matter should be adjudged to tread back, and, by a sort of nunc pro tunc process overturn his testamentary dis- position of property. In fine, this court seems commit- ted to the proposition that where there is a will, there is not always a way—to break it.” In a case full of unusual expression coming from a judicial mind, we find the following: “When Crusoe saw human footprints on the sands of Juan Fernandez and concluded therefrom that men had visited the isle, the soundness of his judgment is intu- itively and spontaneously allowed by his rational friends, school-boy or grown. So, here, when the act of stopping in response to a signal is conceived to be an act of human intelligence-footprints, so to speak—the conclusion that a motorman was present is irresistible and conclusive.” In defining the legal term “ordinary care” and im- pressing its legal significance, the court comments as fol- lows: “Based on a self-evident premise, it may be, in a large Foot- prints 26 Wit, Wisdom and Philosophy Seared way, laid down that the sacredness, the dignity of human life is the master key in unlocking the problems of juris- prudence, the central fact in all law, human and divine, furnishing the crowning object of civilized government, and the essential purpose and need of the very existence of courts. Liberty, property, and the pursuit of happi- ness are mere collateral off-shoots, all, to that parent stem-flowers blooming from that stalk. "Far be from us the day when light indifference, a callousness born of the capricious needs of commerce, whereby the public conscience and sensibility may be Public Conscience seared as with a hot iron, allows that sacredness to be lowered or whittled away by the negligent omission of ordinary care.” Speaking in reference to contracts with certain organ- izations that donated funds for the purpose of providing homes for old soldiers, sailors, etc., and with reference to the rights of the inmates to vote, an election being con- tested, in part on the ground that such votes were illegal votes, the court said: “The state of Missouri made the contracts through a motive of patriotic duty and along lines of sentimental beauty. The state of Missouri has shown no disposition to regret the contracts or repudiate them by the tithe of a hair and who shall, except under the prick and goad of unquestioned constitutional mandate, dam the current of its authority or put bounds to its disposition to be impe- rial in its affection? Who shall weigh, as it were, with widow's goldsmith's scales the widow's mites that pass into the Mites public chest and in return for which the state of Mis- souri plighted the public faith by a public act solemnly agreed to maintain its soldiers, broken by misfortune in health and purse, and (what is more to the point) at the same time permit them to vote? If this thing is to be done, or can be done, it must be done in a case and upon issues where the parties to the contract are present in Senti- mental Beauty Gold- smith's Scales Wit, Wisdom and Philosophy 27 Evening of Days Sickness of Soul court and may be heard, either as litigants amici curiae, Amici Curiae and will not be done, ... contesting a county office in Phelps county. The question of public expense' must, furthermore, be viewed in the light that a privi. lege of a home in the evening of their days, of a chimney Chimney corner, of a hearthstone, and the right to vote, was Corner bought and paid for with a great price by the inmates and their comrades in arms. Who at this late day, in a piping time of peace will measure that price or care to bring it within the precision of the legal formula? These Legal Formula men and their comrades in arms, stalwart then, marched and countermarched, mined and countermined, dug, starved, froze, planned, dared and fought through four years of Civil War under Lee, Johnson and Stonewall Jackson, under Grant, Sherman and Logan. Some of their comrades perished in battle, on the lone picket, on the long march, of wounds, in prisons by burning fever, by sickness of soul or by deadly miasma. The grave has since swallowed up many a gallant survivor, hurried un- Hurried der the sod by the privations and exposure of war. It is Under written: ‘And they bound him with thongs.' Paul said unto the centurion that stood by, 'Is it lawful for you to scourge a man that is a Roman and uncondemned ?' When the centurion heard that, he went and told the chief captain, saying, "Take heed what thou doest; for this man is a Roman.' Then the chief captain came and said unto him, 'Tell me, art thou a Roman?' and he said, ‘Yea'. And the chief captain answered, “With a great sum I obtained this freedom.' And Paul said, 'But I was free born.' Whether freedom for a soldier to vote was obtained at a great price, or was an incident of being free born, in the case at bar, matters little.... Nor do we care to split hairs over the question of which cause the inmates of these homes fought for, because it was written in the book of fate that the Civil War had to come. Was the union of the states indissoluble, or was Free Born Book of Fate Wit, Wisdom and Philosophy 29 Mighty Mother the smoke of war, you see him riding and fighting (in gray) with Shelby or Martin Green or marching and fighting with Price and Cockrell, with Parsons and Mar- maduke, with Bowen, Little and Gates; or you see him (in blue) marching and fighting with Blair and Phillips, Crittenden and Osterhaus, with Lyon, Sigel, Guitar, Loan, and Hale. When he came home from the wars, his mighty mother, the State of Missouri, with a great heart claimed him as her son, proud of his deeds, resolute to cherish his memory, magnanimous to forget his quarrel, tender to both uniforms, and mourning over dead, or war worn and desolate, Confederate and Federal. In this condition of things, we are told that the Constitu- tional convention of 1875 so wrote the fundamental law that if the state found any of the old soldiers at the foot Toot the HIII of the hill of life, stranded in health and empty of of Life pocket, it could not give them a home or a fireside ex- cept at one and the same time it took from them the freeman's precious right to vote. “Technicality may become a horse, which once astride and well ridden, will carry us wide of ultimate right. But no horse straddled by any court, could carry us far- ther away from the path of sound law than the horse of reading into the people's constitution by unnecessary construction the theory that Missouri has disfranchised her veterans of the Civil War, old, poor and infirm, but who are her honored guests at her own fireside on her own invitation.” In speaking of the unfortunate position into which a widow would be cast, by a harsh construction of a dower statute, the court wrote as follows: “It will be observed that every other widow is pro- vided for before this section is reached, except the one large and naturally to be expected class, to wit: mothers who have borne children by their deceased husbands—a class of widows deserving of nothing but exquisite gen- Wit, Wisdom and Philosophy Cap Sheaf tleness and seemingly deference and bounty at the hands Exquisite Gentle of the law, human and divine. It is treason to better ness human nature, it seems to me, to suppose that legislation was passed intended to deal harshly with them or any of their kind. Section 2944, undertakes to put the cap sheaf on the statutory scheme, and to allow such widows to elect with reference to their dower. Plaintiffs con- cede defendant's right to elect if her child ... had lived; but they say, in effect, that, when death robbed her of her only child, it also snatched away her right of Snatched the Away election, because she could no longer measure up to the statutory standard of having a child or children living' by M. If that be the law, then the law adds point to the sting of death—a pinch in the pocket dogging the heels of her calamitous stroke.” Calami- tous Stroke Body and Soul THE SENSE OF THE LAW “From the Judgment and the Cause of it, the reader may observe that if it is not the words of the law, but the sense of it, that makes the law, and our law (like all others) consists of two parts, viz.: of body and soul; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law. ... And the law may be resembled to a nut, which has a Nut shell and a kernel, and as you will be no better for the nut if you make use of only the shell, so you will receive no benefit by the law if you rely only upon the letter, and as the fruit and profit of the nut lie in the kernel, and not in the shell, so the fruit and profit of the law consists in the sense more than the letter. And it often happens that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive." Fruit and Profit Wit, Wisdom and Philosophy 31 DENTIST, DIPLOMA-EXAMINATION BY STATE BOARD “It is manifest that no practical examination by a dental board could go quite so deep or be so searchingly broad in meaning as an honest, well-earned diploma of that sort. The law places its benediction on such a Benedic- diploma, assigning it no trifling office, and public sen- timent tends to support that theory. The law says it may be received in evidence by the board as standing for all it is worth; and then the board by way of check and as capsheaf on the statutory scheme, may examine the applicant to see whether the seeds of information sown in his mind as a student fell by the wayside, or fell on stony ground, or had been lost by forgetfulness, as the seeds in the parable were devoured by the birds of the air.... We find no legal fault with the legis- lative theory that it was largely impractical for an ap- plicant to acquire in first instance suitable skill in technique and adequate professional knowledge by him- self or in an office ... that is to say a dentist shall not be examined or licensed who holds no college di- ploma or no certificate from another dental board is as unreasonable as to put up the bars to one who had grey eyes or red hair, or who stood, say, five feet eight inches in his socks—all restrictions of that ilk, it is ar. So gued, are whimsical, unreasonable, arbitrary, and hence plainly outside the legitimate province of legislative control, and void. ... We think not. If, peradven- ture, the law had actually put a ban on grey eyes or fiery locks; if it had required successful applicants to array themselves in Highland costume and perform in a pleas- ing way on a bagpipe, or believe (without mental reser- Bagpipe vation) in each of the five points of Calvanism and pro- tective tariff, or chisel the Aphrodite as cunningly as Praxiteles, or submit a thesis on springing uses or the tion Seeds of Informa- tion Red Hair Fiery Locks Aphrodito Wit, Wisdom and Philosophy 33 both rose to rather a high-water mark in that behalf- both were able to take care of themselves, and hence were not wards of chancery.". Day Writ Large Naked by Lies In what is said by many to be one of the most un- usual of all these opinions the court wrote at length upon a real estate trade in which equity was called upon to right certain wrongs, in which a weaker had been “traded” out of a farm by the stronger. “Now, the master, the broad-day-light fact in the Broad case is, that plaintiffs were tricked out of their farm. Fact Even he who runs may read that overlapping fact writ large in the record. It was lost to them as effectually Parth. as if an earthquake had swallowed it. So what they quake lost Head got, the proverb running: 'It's an ill wind that blows nobody good.' The chancellor must have found they were stripped naked by lies they believed true. That the thing was done cannot be gainsaid; and the question resolves itself into another, viz.: Can equity get relief? Attending to that, there was evi- dence from which the chancellor could believe, and doubtless did believe, that Head told them at their Illinois home, in effect, pointing to their land with a Hand flourish of his hand, that the soil of his farm in Mis- souri was as good and as productive as theirs. What is fact and what is mere opinion is often a close ques- tion. The one easily shades off into the other, or is handmaiden to the other, but we make no question but the foregoing was a statement of fact. It amounts to, or is in the nature of, a sale by sample. The fact is that he knew of the productive qualities of both farms, plaintiffs did not know, and knew that representation to be a falsehood.... No one who ever ran a fur- row would take a representation of the absence of hard- pan as a mere conjecture of opinion. If facts are stub- born things, hardpan caps the climax and fills the bill. The truth was under the evidence, to Head's knowl- he Handrish irigh Hand- maiden Hard- pan 34 Wit, Wisdom and Philosophy Great Truth edge, his Missouri farm had a thin soil underlaid with hardpan. It was a washed, neglected, rundown, and worn-out farm that had been in cultivation for fifty- six years, with no effort to build it up. . . . He grossly misrepresented the fruits on the farm; among other ways by saying that the cherry trees there pro- duced ‘wagon loads of cherries'-a great falsehood. In Falsehood short if plaintiff's testimony is to be taken as true, Head, in a long conversation descriptive of the farm, Told No told them no truth whatever. There is another matter of significance, a most humiliating one, namely: Shortly after his appearance at Stonmets' home in Illi- nois, it fell out that Head discovered that Plaintiffs were church people, interested in Sunday schools and temperance work. Observe what followed. Was Head interested in that line? Precisely, and very much so. Good v. In the great controversy of Good v. Evil (old, yet ever new) he was enlisted on the side of temperance, Sun- day schools and churches. They had a good 'friendly chat about that.' They were warring in the same cause. We fear, we very much fear, that in all this Mr. Head, “'Stole the livery of the Court of Heaven, Court of Heaven To serve the devil in,' to use the strong words of a gloomy writer, thereby weaving a net for his neighbor's feet. Presently din- ner was announced, and Head, having prior to that by the tone and thread of his discourse admitted his quali- Pious fications for that pious office, was invited to say grace. Looking fore and aft at the whole transaction, we have reason to remark that no doubt he said it as unc- tuously as the middle member of the firm of Quirk, Gammon, and Snap would have done under like cir. cumstances. For what is the rule of construction on Hypocrisy hypocrisy except, ‘By their fruits ye shall know them?'. Ofico Wit, Wisdom and Philosophy 35 Having eaten salt at their table (which creates an obligation even the Arabs of the desert are said to re- spect), he assured them, on being anxiously pressed on his statements of fact about the farm, that he 'would not tell a lie for his farm,' or 'for the world.' Oh, De- Deceit ceit (we speak in judicial sadness), thy name is Head! It is under such circumstances, and after worming his way into the esteem, and sowing seeds of confidence in the bosoms of these unsuspecting people, that this trade was made on Head's representations. There is no call Mince to mince words and speak daintily. The case calls for Words plain speaking, and I pause long enough to say this in passing: it is said that one of the names of the Evil Father of One is that of the Father of Lies. In sacred annals Lies there is preserved an incident of an evil spirit, pos- Evil sibly said Father of Lies (but for this latter I do not Spiri vouch), entering into a herd of swine, whereat the hogs destroyed themselves by rushing violently down a steep place. So Head, because of the spirit that pos- sessed him and caused mischief, was decreed by the learned chancellor a fate somewhat similar. . . . We lay out of the case the mere glowing picture by way of argument and advice which Mr. Head painted to help accomplish his purpose, relating to future pros- Prophecy pects, possibilities, and what might be done on the Mis- and souri farm, all sounding in prophecy and conjecture, Conjecture and hid away in the womb of the future. We confine Womb of Future ourselves to the representations of present fact made by Head, that the lady relied on his statements is as clear as the noonday sun, and we think her husband did also, and that both had the right to do so. They were not in a position of perfect equality with Head. As said, he knew all, and they, as to the facts within the representations complained of, knew only what he told them. He knew they did not know, and, what is more, knew they relied on him as a Christian gentle- 36 Wit, Wisdom and Philosophy on Role Master Passion man who posed in the George Washington role of tell- Gerge Washing- ing no lies—especially about cherry trees. Vide Weem's tot Life of Washington. At root the object of all trading is gain. If no gain was allowed, there would be no in- centive to exchange of properties and little buying or selling. But when so much has been said, and it is further said that the doctrine of ‘let the buyer beware' must be reckoned with, and that simple general com. mendation is allowable as puffing and dealers' talk, yet Puffing there is a boundary that may not be crossed. The vehemence of the master passion, gain, must be cooled and curbed by the law; for not only is the love of money the root of all evil' (1 Tim. vi. 10), but another wise man, who summed up ultimate truths in grave and short sentences, saith thus : “"As the nail sticketh fast between the joinings of the stones, So doth sin stick close between buying and selling' (Eccles. xxvii, 2). “The law abhors fraud—a thing that generally has its root in falsehood, the suggestio falsi. ... Fraud Kaleido- is kaleidoscopic, infinite. Fraud being infinite and tak- scopic ing on protean form at will, were courts to cramp them- selves by defining it with a hard and fast definition, their jurisdiction would be cunningly circumvented at once by new schemes beyond the definition. Messieurs, curs, Fraud- the fraud-feasors, would like nothing half so well as Feasors for courts to say they would go thus far, and no further in its pursuit." In the various opinions written by this court touch- ing the many phases of litigation in which corporations were parties, some of the most interesting of all the data selected will be found. “As corporate bodies have no hands, but move, act, and think through... officers and agents, the gov- Cunningly Circum- vented Wit, Wisdom and Philosophy 37 _ __ _ _ _ his general thread Engliga Crippled Life erning body or president of the corporation becomes the corporation itself. ... And this general prin- ciple runs through all cases like the marking red thread runs through the cordage of the English Navy." “That corporations created to be the owners of pub- lic utilities should be born into a sham and crippled life, and that there seems to be a call for more adequate Itching safe-guards against the itching temptation to circum- vent our corporation laws by falsehood, whereby the tion ancient plan for making gain by 'watering stock,' con- ceived by the shrewd old patriarch Jacob in dealing with Laban (Gen. xxx, 30, et seq. q. c.), is parodied and brought to blush, may concern the legislative branch of the government, but cannot be remedied by the courts except in sporadic cases, where some relief may be ad- ministered if the facts allow." Jacob Laban Soldiers Corporate Sin STANDARD OIL “Like the man under authority, who has soldiers under him, a corporation says to one of its officers, 'go, and he goeth; to another, come and he cometh; and to its servant, do this, and he doeth it.' By virtue of such Fetch and commands its officers fetch and carry. Carry “The business life of the company in this jurisdiction would seem to show that it was born in original cor- porate sin, and begotten in corporate iniquity. The Iniquity record shows that it was a rover, flying the flag of fair trade only as a decoy-wearing the livery of a fair trader to more easily and effectually strike down all fair trade in oils, and more effectually fasten the yoke of an odious monopoly upon the state. It is here today and gone tomorrow. It has no fixed business abode in Missouri, and is not rooted in this state by any vested interest." “Did these minority stockholders invoke the judicial Odious Monopoly Wit, Wisdom and Philosophy aid in any court open to them to prevent the consum- mation of the unlawful purpose of the alleged wicked Wicked Majority Open majority. Not at all. Did they ever give open cry to Cry their protest, and call to their aid and force the whole- some public opinion ? No. Did they refuse to take an even pro rata of the illicit, fabulous gains arising from the unlawful combination ? No. Have they these gains in pocket now? Yes. Do they offer restitution ? No. When the corporation was sued in this proceeding, did these minority stockholders enter their appearance, or ask to have an appearance entered for them in order to protect their minority holdings by placing themselves Rectus in rectus in curia ? No. In such condition of things we Curia Judicial are of the opinion that the minority stockholders are Sympathy not objects of especial judicial sympathy, no more than Empress Maria Theresa in a certain historical event. 'What,' asked one of Frederick the Great, 'was the attitude of the Empress toward the partition of Po- land?' 'She weeps,' dryly remarked Frederick, 'but she takes her share.' Until such time as to be written as a precept of law that the allowable way to it, or until Alluring it be written in the law that the alluring enticement of Entice- great gain forces the tempted one into doing an illegal ment act, and takes the edge from a willing participation in the illegal act (we are) not willing to extend such judi- cial sympathy.” “Suits for libel against corporations shall be brought in the county in which the defendant is located, or in the county in which the plaintiff resides; and when suit is instituted in the county in which the plaintiff resides, summons may be issued to and served by the sheriff of the county in which the defendant is located. The new act is just to both defendant and plaintiff. It does not compel plaintiff to go to a distant county where the defendant is located to sue. It brings the corporate defendant to the home of the libeled party, where nat- Wit, Wisdom and Philosophy 39 Beard the Lion Code of Justinian urally the humiliation suffered is acutest, and the dam- age greatest. It permits the plaintiff to beard the lion in his den by seeking the corporate defendant at its home, if he choose. But it denies to the plaintiff the right to leave the homes of both and, as a ruse de guerre, Ruse de Guerre search out a forum to try the case where prejudice may insidiously lurk to run rampant against defendant." “It can never be amiss to remind ourselves that in a court of conscience a corporation, like a natural per- son, is required to live up to the great commandment of the law, viz.: To live honestly, not to injure another, to give each one his due. Such was the doctrine of old Ulpian, carried over into the Code of Justinian, and it is a very good rule of equity down to this day. Cor- porations may libel, they may be guilty of malice, and (though without souls, yet) they must be held to have an ethical sense, and know the difference between mine "Mine and and thine-or suffer for it. ... Thino “ To crown all, as already said, the plan contem- plated (and this was held out to the Transit stock- holders to toll them on to the corporate death of their company) that its old stockholders by a pro rata ex- change would escape any appreciable loss by swapping their stock of the Railways company at the ratio of five to two. And that result was also attained practically. All these things were the natural and intended results of the tripartite agreement of the syndicate agreements at its foot, every one of which was interdependent and headed to the common predestined purpose, so outlined and consummated. It is not allowed to us under this record to hold that those contracts and results (as argued) were disconnected or independent of each other, so that the Railways company held the gains ac- cruing to it by a clear and wholesome title acquired through third parties or by independent contracts. To, Links in the contrary, these things were but links in a chain, and, Chain Corporate Death Wit, Wisdom and Philosophy Nursery Fable keeping in mind the dangling prize hung out to the Transit stockholders to save themselves, it was here, as in the nursery fable (if we may borrow from so humble a source without lowering the dignity of our case), to- wit: 'the fire began to burn the stick, the stick began to beat the dog, the dog began to bite the pig, and so the pig jumped over the stile, and the old woman got home that night.'" ADOPTION On the subject of adoption the court goes far into an- tiquity to be better able to compare with the "origin of things” the questions touching the rights of an adopted child. “Adoption was unknown to the old common law of England. It was known to the Roman Law, was at- Ceremonial tended with ceremonial dignity, and of deep meaning Dignity and far reaching results—a notable historical example is by Napton, J. ... 'whereby Tiberius being the stepson and adopted son of Augustus, his nephew, Ger- manicus (adopted by Tiberius at the command of Aug. Athenians ustus Caesar), became the grandson of Augustus him- Spartans self.' ‘Adoption ... was known to the Athenians and Spartans, as well as the Romans and ancient Ger- mans, and familiar to the writers of the New, if not the Old, Testament.' It seems to have taken root in Egypt Hebrew Jurispru (Exodus 2:10). Paul, himself a lawyer profoundly in- dence structed in Hebrew Jurisprudence, assumed the doc- trine of adoption to be well known to his readers, and borrows the use of that doctrine as a hammer to clinch the nails driven by him on matters of faith. Rom. 8:16, 17 q. v. The doctrine was not unknown to the Babylon- ians—witness the Code of Hammurabi, compiled from 2285 and 2242 B. C. Sections 185 to 193, inclusive, of that code are curious and read as follows: Wit, Wisdom and Philosophy Sonship Palace Warder Handicraft “Sec. 185. If a man has taken a young child “from his waters” (like Moses was taken, possibly by the daughter of Pharaoh) to sonship, and has reared him up, no one has any claim against that nursling. Nursling "Sec. 186. If a man has taken a young child to sonship, and when he took him his father and mother rebelled, that nursling shall return to his father's house. “ 'Sec. 187. The son of Ner-Se-Ga, a palace warder, · Vowed or the son of a vowed woman, no one has any claim 'Woma upon him. Sec. 188. If an artisan has taken a son to bring him up, and caused him to learn his handicraft, no one has any claim. 66.Sec. 189. If he has not caused him to learn his handicraft, that nursling shall return to his father's house. 66.Sec. 190. If a man, the child whom he took to his sonship and has brought him up, has not numbered him with his sons, that nursling shall return to his father's house. “Sec. 191. If a man, after a young child whom he has taken to his sonship and brought him up, has made a house for himself and has acquired children, and has Set His set his face to cut off the nursling, that child shall notº go his way, the father that has brought him up shall give to him from his goods one-third of his sonship, and he shall go off; from field, garden and house he shall not give him. "Sec. 192. If a son of a palace warder, or of a vowed woman, to the father that brought him up, and the mother that brought him up, has said, “thou art Cut Out not my mother,” one shall cut out his tongue. Tongue “Sec. 193. If a son of a palace warder or a vowed woman, has known his father's house, and has hated his father that brought him up or the mother that brought him up, and has gone off to the house of his father, one shall tear out his eyes.' “Adoption was also an incident of Spanish law, was incorporated in the Code Napoleon, and from that Code (or Spanish Law) found its way through Louisiana and Texas into statutes of their sister states. As shown by Napton, J. . . . our statute was not directly bor- Face Field Garden House Tear Out His Eye Wit, Wisdom and Philosophy Law rious yst Essence rowed from the Roman law, and is therefore not at- Roman tended with all the incidents of that law—one incident of which was that the adopted child took the full rights of a child in its new family and lost its birthrights, Twilight of becoming a stranger and an alien in the family of its Remotest origin. From the twilight of remotest time it was con- Time sidered that the life of the flesh was in the blood.' Lev. 17:10, 12. Blood was the mysterious essence of religious rites. The blood atonement, the blood tie, to have the same blood run in one's veins, to be bone of the bone, flesh of the flesh, were the essential elements of things earthly and spiritual. Hence when the Mingo chief exclaimed, “There runs not a single drop of my blood in the veins of any living creature' the picture Savage of his savage desolation was made complete at one Desolation stroke. Nevertheless, it is pointed out by those schol- ars who have dug up the origin of things from the dust Dust of the Past of the past that the yoke of the blood tie, in this age or that, lay loosely on ancient peoples. It was shown that children might be lawfully exposed (devoted) to Red Hot death, fed to beasts, burned in the red hot bowels of Bowels war idols, sacrificed to vows—witness the fate of Jeph- thah's daughter and the fate of Iphigenia, the child of Agamemnon's loins—and vacancies were filled by trans- planting, or, to put it otherwise, grafting was allowed. . .. 'Like a bud that has been cut from its natural Natural stem and grafted into foreign tree, she grew into the Stem family and became a part of its very life—everything that adoption contemplates and accomplishes.' That metaphor, chaste as a gem, does not mean, nor was it in- tended to mean that plaintiff passed current as an heir, Stamp of made such by the mold and stamp of consanguinity. It Consan- guinity means that, as between her and James Lynn, she was given 'everything that adoption contemplates'—that and no more.... 'Inheritance flows naturally with the blood.' . . . The bastard at common law was the Wit, Wisdom and Philosophy 43 child of nobody-nullius filius. He was a living ex- Nullius Filius ample of the exceedingly old and right bitter adage, doubted, as unfair, even when in use: "The fathers have eaten sour grapes and the children's teeth are set on edge.' Jer. 31: 30, 31. He could not inherit from the father—he was unknown. The law branded the mother, figuratively, and sometimes actually, with a scarlet letter, and, to interdict the sin, denied inherit- able blood to the sinless child.” Scarlet Letter FRAUD “Fraud is rarely ever susceptible of positive proof, Cry Aloud for the obvious reason that it does not cry aloud in the streets, nor proclaim its iniquitous purposes from the house tops. Its vermiculations are chiefly traceable by a Studious 'covered tracks and studious concealments.' Indeed, Conceal- fraud is as illusive as the wind, of which it is said, “The ments wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh and whither it goeth,' and its investigation of necessity needs scope and a somewhat free rein.” “For instance, if B wants oats, and A shows B an open sack of beans (both A and B being sui juris, and not knowing beans when the bag is open), and A tells B they are oats, B ought not to complain when he buys the sack because he gets beans. “If one voluntarily shuts his eyes when to open them is to see, such a one is guilty of an act of folly (in deal- ing at arm's length with another) to his own injury; and the affairs of men could not go on if courts were being called upon to rip up transactions of that sort. “A vendee is held to know what his own eyes would disclose, and, knowing, could not be deceived. But Wilful Deception when an element of wilful deception leads up to a transaction, the whole situation changes. Take a very 44 Wit, Wisdom and Philosophy Amasa old case put in a well-authenticated record: 'Joab said to Amasa, Art thou in health, my brother? And Joab took Amasa by the beard with the right hand to Joab kiss him. But Amasa took no heed of the sword that was in Joab's hand : so he smote him therewith in the fifth rib, and shed out his bowels to the ground, and struck him not again; and he died. In that case was Amasa blamed for being deceived by the usual sign of the oriental, friendly salutation, tho a fighting sol- dier held sword in hand? And, generally speaking, until there be written into the law some precept or rule to the effect that the heart of man is as prone to wick- edness as is the smoke to go upward, and that everyone Thief and must deal with his fellowman as if he were a thief and Robber a robber, it ought not to be held that trust cannot be put in a positive assertion of a material fact, known to the speaker and unknown to the hearer, and intended to be relied on.” “Fraud is commonly deeply hid away. Often it can only be got at by inference. It is scarcely ever proved Blows No by admission; for it blows no trumpet. One cannot put "T Trumpet his finger on it and say, 'Lo, here it is!'Or, ‘There it is !’-palpable to the touch. But it is got at by follow- ing its tracks from results back to the inception of the affair or from the inception of the affair forward to re- Jealous sults. To that end courts are full of solicitude, and and Anxious look well with a jealous and anxious eye. Therefore Eye they permit a minute search and a wide one in pursuit of fraud; for it may now and then be seen through a small crevice, and seemingly indifferent things, without sinister significance when taken separately, may, when Dove-tailed properly dove-tailed together, establish fraud. ... Nevertheless actual fraud is a malevolent and wilful act. The difficulty of proving it does not dispense with the necessity of proof. It must not be deduced from mere Innuendo suspicion. It is not proved by insinuation and innuendo. her Wit, Wisdom and Philosophy 45 Mankind It is never given body and form by mere presumption. So that, where one of the two views is open, ... the one noble and the other ignoble, courts of justice out of tenderness to humanity will not belittle mankind Belittle by taking the ignoble rather than the noble view.” “It is a hornbook proposition that under given con- dition courts treat inadequacy of consideration as a badge of fraud, when they are in its pursuit; and when a $1000 farm is levied upon by the state for the sole purpose of paying taxes against it and passes to a Bagatelle stranger at a tax sale for a bagatelle too small to even pay a few dollars cost, leaving the sovereign state to whose use the taxes were levied, and lien enforced, and the sale made, “to hold the sack' (if we may use a snipe Snipe hunting simile), what is it, if not an arrant fraud-a Hunting trick on the state, and a trick on the land owner? In common honesty, looking to the good sense of the thing, what innocence can be in such a purchaser? Does he Tainted not hold a tainted title, subject to be set aside either at Title the instance of the state whose revenues are defrauded, or at the instance of the land owner whose property was taken by solemn mummery? Now, what has equity Solemn Mummery to do with such a situation? Is its arm too short to reach it, or too weak to deal with it? Will a court search it out and find it, see its iniquity and then (O! Lame most lame and impotent conclusion !) leave it be, refuse Conclusion to meddle with it? Give no remedy? If such be the law, then, I submit, the law writes itself down, as Dog- berry wanted, viz. :- ; but no matter about that. The Dogberry all and all of the law is to provide a remedy for wrongs when found; not to really turn its face to the wall. Otherwise, our faith in the law is vain. I know of no authority or reasoning leading up to such absurd con- Droll Reasoning clusion, unless it be the droll reasoning of the immortal street lecture on official duties delivered by said Dog- berry, 400 years gone, to the police of Messina. What 46 Wit, Wisdom and Philosophy says the learned reporter anent this lecture in the form of suggestion, a question and answer? (Vide: Much Ado About Nothing, Act 3, Sc. 3). If there was no other way out of it, we should toe the mark and hold Toe the Mark that the inadequacy and consideration in this case was so gross and manifest as to shock the moral sense, turn Topsy- the right and wrong topsy-turvy, make opera bouffe of turvy justice, and avoid the deed so long as the title stands in the purchaser at the sale. If there was an innocent sub- vendee other questions would arise.” “It is old and seasoned learning that, as the laws of men presumably are founded on natural justice and reason, courts search as with a lighted candle for the reason of the law, and, when found, put it as a part of the law itself. Mindful of that end the underlying reason of the main exception to the statute of frauds (an ex- ception invoked by plaintiff, and upon which he must stand or fall) is universally allowed to be that a statute leveled against fraud ought not to apply to a case where to apply it would work a fraud—thus accomplish- Shameful ing judicially the shameful thing the law was intended Thing to prevent others from accomplishing. If the law were made to fill that bad office because of courts sticking in the bark, it might be likened to that anomalous person of whom it was spoken: ‘His honor, rooted in dishonor stood; And faith, unfaithful, kept him falsely true.' “To avoid such abhorrent result, equity steps in (not Discerning to destroy the law, but) to fulfill the law by discerning the Soul the soul of it and enforcing its purpose. In expounding the statute of frauds, stress is frequently laid on its office in shutting the door to the danger of perjury in suits to perform parol land contracts in specie. But, peradventure, the intentment of the statute goes fur- Frailties ther, connecting itself with mere frailties of memory. of Memory Wit, Wisdom and Philosophy 49 Flag sociation, are in turn laid bare and defined in no un- certain terms. “Down to this day Kuhlman stood under the flag of insolvency and claimed the protection and immunities peculiar to its folds. Never since has he carried any real estate in his name. His choses in action then or since existing, if any, disappear as any part of his as- sets, and if they reappear at all they do so apparently as part and parcel of hers. So that he then became and ever since remained independently poor as to his cred- itors, beggared as to them to all outside appearances, and without a particle of visible property subject to legal process. It sufficiently appears, also, that if his complaining creditors have any remedy it is in equity. Whether such remedy exists depends on conclusions to be drawn from a close and discriminating judicial Judicial Scrutiny scrutiny of the scheme whereby (he) filled the alleged office of agent for his wife and she in turn became ap- parent owner of all he had including his then business with all and singular its after earnings and gains for the ten years between 1897 and the date of the trial. Attending to that phase of the case, the facts are these : Kuhlman, 40 odd years old, has been for 23 years— that is since his majority and arrival in this country- a horse trader. While his headquarters (barring a short interval) were in St. Louis, he was peripatetical and at spells plied his calling now and then in other towns of that region. Twice married, Kuhlman during his first wife's lifetime did business in his own name. She died having before her death conveyed a property on Sarah street in St. Louis to him. Presently he mar- ried defendant, Lillian, aged 20. From 14 years of age up to her marriage, Lillian worked as a domestic on wages. Her mother was a widow living in apartments in the second story of a tenement house. If this widow had any property worth while its source is shadowy, 50 Wit, Wisdom and Philosophy Windfall and it consisted in money kept concealed by her in those apartments. Her family were Lillian, an elder sister (also working out as a domestic) and a brother working on wages, since dead. We gather that the family was supported by the labor of the children and by sewing the widow took in. After the widow ceased to keep house, as she did presently, she lived with her eldest daughter who had married, paying nothing for board or lodging till she died. Two days after Christ- mas, 1897, her daughter, Lillian, married Kuhlman. Appellants introduced testimony tending to show that Kuhlman's fortunes at that time were at low ebb, that a few days after the marriage Lillian's widowed mother, strongly impressed with her new son-in-law's ability as a horse dealer, produced from some hidden source $750 and presented it to him to go on in the horse trading line. The theory of appellants is that this wind- fall of $750 became Kuhlman's subsequent capital in trade as agent for his wife, and there is testimony tend- ing to show on their behalf that she then put this pres- ent of money in an iron safe in the house and safely Snug Bug kept it there snug as a bug in a rug for over a year, when she deposited it to her name in the bank on the 28th day of December, 1898. A bank deposit was in evidence for that date for that amount to her credit. We shall recur to this bank deposit later. It has weighty matter in it, and on the ownership of that deposit this case turns on a pivot. There is more testimony on that behalf presently to be considered. There is testimony also tending to show that at once after the marriage an arrangement was made between Kuhlman and his wife whereby he should ply his calling as a horse trader as the agent of his wife and a sign was put up at their place of business, reading: 'H. H. Kuhlman, Horses Bought and Sold, Agt.' From the time of that mar- riage onward he so ran the business. No bank account Rug Turns on Pivot Wit, Wisdom and Philosophy Land Paid Boot condition of things: Before his second marriage Kuhl- man traded his Sarah street property for a farm of 240 acres in Pulaski county and $600 in cash to boot, in February, 1897. There is an effort to show that this land was “turkey land'-i. e., of little value. But from Turkey what follows it is apparent that we need make no fur- ther investigation or finding on the worth of that farm for it is not a vital issue in this case. On the 24th day of May, 1898, for an expressed consideration of $4,580, Kuhlman and his codefendant, his present wife, con- veyed that land to one Adolph Mast, a butcher in St. Louis. The transaction was not an out-and-out sale for cash, but a swap of property by Kuhlman and Mast. Thereby Mast traded to Kuhlman for his farm in Pu- laski county the Madison tract in question and paid boot—the title to the Madison tract as said being taken in the name of Lillian Kuhlman. As a part of that trade Kuhlman got a grocery store in St. Louis va- riously estimated at worth from $200 to $1000. This grocery store he also turned over to his wife. As we understand the record Mast assumed and paid a se- cured debt on the Pulaski farm of $750, and gave Kuhl- man a note for $8000, secured by a deed of trust on the Pulaski farm, which note he afterward paid to him in- dividually on December 28, 1898. In turn the Kuhl- mans assumed a building and loan association debt of $800 on the Madison tract which Kuhlman subsequently paid out of the income of the horse trading business in two installments by checks drawn as indicated here- tofore. Afterwards in 1904 the Kuhlmans borrowed $1000 on the Madison tract. So much for the Madison tract. It will be observed as of significance that the date of the Mast payment to Herman Kuhlman of the $800 note, a balance due him on the Pulaski farm coin- cides precisely with the date of the beginning of the bank account, on the $750 item of which appellants rely 54 Wit, Wisdom and Philosophy Olden nature is that which God at the time of creation of the nature of man infused into his heart for his preserva- tion and direction; and this lex asterna, the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed, before the law was Moses written by Moses, who was the first reporter or writer of law in the world.' The laws of men recognize the paramount office of the laws of nature in that regard, thereto ample authority might be cited if there was need of it. Nor whatever the doctrine of olden times Times or in other climes, does our modern law make a debtor a slave or serf of his creditor, bound to him as such serf Cable Tow, or slave by either a legal cable tow or silken thread.' Silken Thread Thereto the rule in equity agrees.... “To compel men to work for their creditors who may perversely pre- fer to work for the benefit of their wives and children, and leave honest debts unpaid.' That pronouncement is the law of this jurisdiction. ... But the foregoing generalizations go with a grain of salt; for the moral Grain of Salt law, recognized by the statutes which lays once for all upon the husband and father the inalienable, paramount and abiding duty to support wife and child, must not be used as a mere cover for fraud against creditors. When fraud comes in at the door all contrivances to consum- mate it fly out at the window in chancery. Such use of a moral law is but to pollute a chaste hand, and a hand once chaste but now polluted, pollutes the gift it fetches. Such use perverts an abstract pious purpose into a con- crete iniquitous device. The wise rule in equity is that since the intimate relation of husband and wife affords a convenient and often used opportunity and vehicle for fraud on creditors, transactions between husband and wife in property matters are to be scanned with a jealous Discrimi- and discriminating eye by a chancellor when questioned nating Eye by creditors and the very marrow of the matter is to be Wit, Wisdom and Philosophy 55 searched to discern the true intentment of the thing, to the end that it may be held good or bad as just equit- able considerations point. ... Moreover, the con- tention comes with ill grace in this case; for it amounts Ill Grace to an attempt to escape a charge of fraud on creditors by confessing a fraud on the children of the first wife. Dark Blot (Thereby blotting out a dark blot with a black one.) (Thereby blotting out a dark . i . Equity looks to the substance and not to form. The question is on one hand: Did Kuhlman deal as a horse trader on his own capital? If on his wife's he may act as her agent for she has an estate to preserve and manage. The gains are hers; hence the Cass tract purchased by those gains are hers. But if he dealt on his own capital, there is no room for agency. His pos- ing as an agent under such circumstances is to be brushed aside as a cobweb of sham and pretense. In Cobweb equity it furnishes no protection to either. We think it Trick and clear under this record that the claim of agency is a Subter trick and subterfuge, that Kuhlman is the owner of the fuge capital embarked in his business, and as such owner the gains were his, ergo the Cass tract is his. Certainly she cannot hold that tract as against his creditors. Unless she paid the consideration she stands charged in equity with a trust in his favor, she is seized to his use, and such equitable title is wide open to his creditors.... Under the contradictions, evasions and peculiarities in the testimony of Kuhlman and his wife, it would have Bold been a bold chancellor who would find in her favor on Chancellor that issue. It seems on her theory her husband was shy of money at the outset for his business. By that Whip and token he was under the whip and spur of need. Why, Spur then, was it laid away, kept for a year from him, and finally put to his credit the very day he got $800 of his own? We conclude, as the chancellor below did, that Kuhlman was doing business as a horse trader on his own money. His course of business for 10 years lends 56 Wit, Wisdom and Philosophy color to that conclusion. The testimony shows she knew nothing about horse trading. We are inclined to take judicial notice of the fact that the traditional guile and adroitness of horse trading are of the masculine gender, line mendor Horse , Trading and might well result in the guile and adroitness of the Masculine scheme disclosed by this record. Moreover, where could Occupation plaintiffs go except to equity for full and rounded re- lief against frauds whereby the legal title to Kuhlman's real estate is held in the name of his codefendant? They certainly were not obliged to issue fi. fa., sell under their judgments, and thereafter knock at the door of equity for relief. As they had to end in equity, they might as well begin in equity.” Knock at Door FRAUD–BALLOT Box Dum Fervet Opus “I concur in all either said or decided in the prin- cipal opinion, and add a few observations, dum fervet opus. The cases overruled were by no means intended Sanctuary to make a sanctuary for fraud, but as pointed out .. for Fraud they resulted that way. By lifting high the secrecy of the ballot and putting it on a pinnacle as the very be- all and end-all of the law, by so interpreting the law that secrecy becomes the central and controlling thought in our election laws, the vital matter of the chastity and integrity of the ballot was lowered away and made of mere secondary moment. As, if, withal it was more precious to a free citizen to have for whom he voted kept secret, than to have his vote counted at all, or counted as cast. It is a wise precept of the law, every- where allowed as true, that the greatest incitement to guilt is the hope of sinning with impunity. That pre- cept, it seems to me, was ignored in the cases overruled. To do just and right is the chief commandment of the law. That great commandment was laid out of view, it seems to me, in those cases. When this court adopted Sinning with Impunity Wit, Wisdom and Philosophy Puzzle- Headed the new view that fraud could worm itself into and find a sanctuary in the ballot box, that the ballot box could be nailed up with its possible abominable secret of fraud Abominable Secret safely hid away in its bowels, we thereby unintentionally put a barrier, not to be overleaped, in the way of prov- ing fraud in election contests. Whereby the law, which abhors fraud, which delights to follow it relentlessly, high and low, and snatch away its fruits from its doors, which thereunto permits a wide and minute search for it, which is fond of declaring that it vitiates everything polluted by its dirty hands, supinely permitted itself to stand baffled, helpless, puzzle-headed and paralyzed before fraud in the ballot box. Messieurs, the assassins of the ballot, might well smile when they awoke to that view of it. Not only so, but to protect the mere secrecy of the ballot, an anomalous and dangerous ingenuity of device sprang up. ... As if enormous temptations did not dog the footsteps of secret power! As if the Secret Power trial judge could trust the county clerk with the secrets of the ballot, and could not trust himself or the attor- neys, officers of his court. ... The opinion of our Brother opens the door to a full search for fraud, and that is right. It leaves contestants to carry the burden of the charges of fraud they make in their petitions, and that is right, too. It leaves to us to see whether, when the proof is all in, the justice of the case is with contestants or contestees, and such result is also right." “A virile and scholarly law writer, with a knack of independent thinking, has rescued from the superim- posed dust of years some wise observations of Mr. Jus- tice Grier anent fraud, made to a jury, which we deem is not space misapplied to reproduce as live verities in Verities in philosophy and law (that writer terms those objections no Philosophy 'prophylactic' and we think they are) viz.: ‘Every hon- est mind hates it, and even those who practice it them- selves will join in the denunciation of it. It makes them Super- imposed Dust 58 Wit, Wisdom and Philosophy Virtuous Indigna- tion te feel virtuous for the time, and they are the most ready, from the arguments of conscience, from judging others by themselves, to believe it true, and inveigh most loudly against it. When the clamor of fraud is raised in a community, or when it is confidently charged by coun- sel in a court we are prone to see all facts through a false medium, which magnifies the importance of every fact upon which suspicion of fraud may be raised, and ignore the plainest inference against it. In the midst of our virtuous indignation against fraud, we first as- sume it has been committed, and then seek for argu- ments to confirm, not our judgments, but our prejudice. 'Trifles, light as air,' then become 'Strong as proofs of Light Holy Writ.' Circumstances which to an unprejudiced as Air mind are just as compatible with innocence as guilt, which at best could only raise a suspicion, are set down as conclusive evidence of crime. Those who sit in judg- ment over men's rights whether as courts or jurors, should beware of this natural weakness to which we are almost all ... subject. We all fancy ourselves wiser than, perhaps, others are willing to give us credit for. This feeling is gratified by what we believe to be superior sagacity. Rogues may be cunning, but they cannot deceive us. Under this satisfactory belief we become over-astute, and often see that which is not to be seen. We suffer our imaginations to take the rein from our judgments, and rush headlong in this chase after the fox called fraud. Circumstances which should Fox Called avail for the proof of fraud are such only as are in- Fraud consistent with a contrary view of the transaction, and lead irresistibly to that conclusion.'” On the subject of divorcement in what follows the court has gone back. far enough to suit the most in- quisitive. The court also has some interesting things to say about the “art” of guessing in connection with deciding questions of law. Superior Sagacity Wit, Wisdom and Philosophy could 'put away his wife' under the oldest code in the world, that of Hammurabi, B. C. 2285-2242, 137 et seq. In that code there was a rudimentary regulation in re- gard to the return of the wife’s ‘dowry' if she was put away, and, if she brought no dowry, he was to give her 'one mina of silver for a divorce.' Sec. 139. (Nota bene: One mina of silver equaled 50 shekels; and one shekel 721/2 cents, from which the cost of a divorce in Babylon ... may be figured by the curi- ous—if worth while.) “The duty of a husband to give his wife a ‘writing of divorcement when he put her away seems to have been understood as an ancient Jewish custom by a mere ref- erence to the fact. Matt. 5:31; Matt. 19:7, et seq. ; Luke 16:18; 1 Cor. 7:10-12. In one of these references the right to put away the wife is said to have been al- lowed by Moses because of the ‘hardness of your hearts.' The same right gentlemen had, to wit: that of putting away their wives, obtained in the Pagan Roman Em- pire; but it seems also that the world had progressed to the point where it conceded the right to ladies too. They could 'put away' their husbands; the divorce be- ing 'pretty much at the pleasure of either of the par- ties.' Does not everyone know that the greatest of Roman orators put Terentia, his wife, away and gave Tightened her a divorcement, because she tightened her purse Purse strings on his call for money (she being rich and frugal and he somewhat of a spendthrift with elegant tastes) ? We dismiss this bit of old gossip with the suggestion that when Cicero's head was nailed to the rostra by Anthony and Fluvia, said Anthony's wife thrust a hair- pin through his dead tongue, we do not know that the feminine thrust was because of his treatment of Teren- tia (for Fluvia, as former widow of Claudius, had pri- vate grievances of her own against his tongue); but we do know that there was even then a public sentiment old Gossip 62 Wit, Wisdom and Philosophy Public against a divorce by the act of the husband, a public Flux of sentiment which, crystallizing in the flux of time into Time law, centuries ago made a divorcement no longer a pri- vate rescision of a contract, but the solemn judgment of a court on a status involving social order and public morals. It is too far a cry to go back to Deuteronomy P Morals and exploded conditions for proof that the word 'di- vorcement involves the affirmative action of the hus- band. Its form is a little unusual, but its meaning is self-evident. It is plain enough that when either party gets a divorce both are divorced, and the status exist- ing after the separation is a divorcement, and properly termed such. In that sense it is as much his as hers. It is argued that we should read into the statute the idea of innocence in husband and guilt in the wife, before the husband should be rewarded by the right to change the beneficiary in a policy on his life, taken and kept up by him. One answer to that is that the lawmaker One Stroke could have said so with one stroke of his pen and did not make that stroke. Why should we do for him what he declined to do for himself, when our function is to interpret and declare and not make the law? Another answer is that, when a law is plain and unambiguous in terms, we are not allowed to vary, enlarge, or reduce it because of speculative theories of our own. “Ita lex scripta est,' is the maxim in that behalf. A plain and unambiguous statute stands on its own reason, and this is a statute of that character. If, however, we were put to it to assign reasons for the statute, more than one suggest themselves. For instance, speaking to support, in the statute on divorce is ample provision for the al- lowance of alimony out of the husband's estate in ac- cordance with the means of the guilty husband to give and the right of the innocent wife to receive. More- over would not a sufficient reason for not interpreting the statute in accordance with appellant's view, be, 64 W it, Wisdom and Philosophy such accumulations by cashing in their policies, and this in addition to alimony? We cannot abrogate or alter provisions of law on such fanciful hypotheses. We have pursued the matter further than intended.” ... “It must be held that when the divorce went against her, by that token her right to support as a wife during the marriage as well as all right to dower or any other provision in the event she became his widow, ceased. As to . i. (him) ... she by that event, became as a stranger, no more, no less. True, he and she could become reconciled and remarry. That is as you like it. But, when they did so, it was pre- As You Like It cisely the same in the eye of the law as if they had never been married to each other before. It will not do in some mystic way to link the second marriage with the first so as to carry over her rights under the first to the Dead Coal second. The dead coal of her lost marital rights could not be set ablaze by any new flame of love, as a matter of law. As to her, old things had passed away and all things had become new. We know of no principle of law permitting that to be done, and industrious coun- . sel have cited us to no case deciding it may be done. “That D. for a long time drank too heavily for his John sons' good, and this during the lifetime of his first wife, if Barley- as well as during both his marriage ventures with plain- tiff, is abundantly shown, but it is not satisfactorily shown that the use of liquor lowered his will power. To the contrary, it appears that in (or out of) liquor he was dogmatic, stubborn, heady, and pragmatical to a degree. On this behalf we take the credible testi- mony pertinent to the concrete case as we find it, es- chewing the generalizations and theorizing of the wit- nesses. To theorize on the effect of the use of whiskey Will on the will power of man generally depends too much on the extent of the use; the individual man (and, it corn Power Wit, Wisdom and Philosophy 65 may be, the quality of the liquor) to be of value in de- ciding this case. The case cannot be permitted to break on a philosophical view of some moot point in physiol- ogy or psychology. Peradventure drinking makes some men surly, ugly, unaccommodating, and obstinate; Drink Since some mellow, merry, and yielding; some vivacious and witty; some stupid and sodden; and since the days of Noah Noah to this very day, all men the worse off in the long run. Proverbs, xxiii, 29, 30, 31, 32, q. v.” . The court wrote many opinions on the subject of libel, a subject on which in that state there seems to be much diversity of opinion also no dearth of opinion. “The enormity and irreparable character of the in- jury and wrong done plaintiff may be best illustrated by a story I once heard or read, which was substan- tially as follows: A penitent went to her priest and asked forgiveness of her sins. Among others, which was burdening her heart and tormenting her soul, was a slanderous charge she had falsely and maliciously made and put in circulation regarding one of her neighbor women. After repeating it to her priest, he hesitated but finally said to her, “You have committed a very grievous sin,' and requested her to go away and return on the morrow, and he would then see what he could do for her. On the morrow she returned, and he met her at the churchyard gate with a goose in his hands, Goose and he commanded her to pluck the feathers therefrom and cast them to the winds. She obeyed, and after do- ing so, she again prayed his forgiveness, but instead of doing so, he said to her: 'First go out into the high- ways and hedges and gather up all the feathers you plucked from the goose and cast to the winds, and bring them to me and replace them upon the goose, and when you have done so I will intercede for the remission of your sins. Upon hearing these words fall from his Grievous Sin 66 Wit, Wisdom and Philosophy lips her heart was filled with sadness, and she said to . him that it would be impossible for her to find and gather together all of the feathers, for the wind had scattered them to the four quarters of the earth, and that she could not replace them all, though found by her. He then said to her, ‘My sister, so is it with your Slanderous slanderous words; you plucked them from an evil heart Words and put them in circulation, and the wings of gossip have carried them to the four quarters of my parish, and it is impossible for you to recall them, or to re- move the stain you have placed upon the reputation and fair name of your neighbor.' The same is true of the case at bar. The defendant cannot recall the hun- dreds of thousands of libelous words and articles it ma- liciously scattered throughout the state of Missouri, the United States, and through foreign countries, regard- ing the plaintiff ; nor can it remove the blot it painted upon the good name and reputation of the plaintiff. All it can do is to pay him dollars and cents for the dam- ages he sustained in consequence thereof. Counsel for defendant do not seem to realize the enormity of the wrong done by their client or the magnitude of the damages inflicted thereby upon plaintiff. Without profit, but with malice, it put in operation the power- Venomous ful machinery by which its venomous words were Words sounded and echoed around the world, withering, blight- Vulnerable ing, and blackening his good name and fame—the most Armor. valuable yet the most vulnerable armor of the man, when assailed by the public press. No man or woman is capable of withstanding its dreadful fire and on- slaughts. He, who, perhaps, drank deeper from the fountain of human nature, and who therefore better understood the weakness of man, in writing upon this subject poured forth in immortal lines the value of a good name as compared with money. He said: Wit, W is dom and Philosophy ""Good name in man and woman, dear my Lord, Is the immediate jewel of their souls. Who steals my purse steals trash ; 'tis something —nothing; 'Twas mine, 'tis his, and has been slave to thou- sands; But he who filches from me my good name Robs me of that which not enriches him And makes me poor indeed.'” Itching Palm “The situation presented is unusual and challenges A Close a close eye. Here was a controversy between an indi bye vidual and a newspaper of high standing and great in- fluence—the individual asserting he had been libeled, that he had been falsely charged in divers specifica- tions bristling with details with having an itching palm, a vendible honor, and other earmarks of gross Vendible moral turpitude, and that such false charges were bla- Honor zoned abroad in its news columns and read at the fire- side of a hundred thousand homes. Accordingly he goes into a court of justice with his complaint. He is met with an answer admitting the publication, but averring the charges are true. Not only so, but the answer pleaded new matter by way of mitigation which rubbed in the poison, or drove home the barb of the libel. If the things alleged to have been done and said by M. were well laid at his door, then indeed instead of being a public man of sincerity, he was a sort of Peck- sniff-one of a class of canting hypocrites "'Who stole the livery of the court of Heaven, To serve the devil in, Dead -a mère whitened sepulcher full of dead men's Men's bones.'" Barb of Libel “In libel every tub stands on its own bottom. Libel Wit, Wisdom and Philosophy is the brightest jewel in the crown of the law to seek Crown of the Law and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other." "Libel cases are sui generis, in that the gist of ... (the) libel act, imbedded in our constitution leaves to the jury the issue of libel or no libel; and from this cer- tain peculiar results logically flow and are recognized by Two the courts, to-wit, that a defendant in a libel suit has two Strings to strings to his bow, the one the jury and the other the His Bow court, whereas the plaintiff has but one, and if he suc- ceed, must win a verdict from the jury. Stated in a different way, if the defendant can get either the court or jury to be in his favor, he succeeds while the prose- cutor or plaintiff cannot succeed unless he gets both the court and the jury to decide for him. From this condi- tion of things it further follows that the court may direct a non-suit, but cannot coerce a verdict for the plaintiff.' “So, too, an oral charge merely falls upon the ear, and the agency of the wrongdoer in inflicting injury comes to an end when his utterance has died on the ear, but not so with the written or printed charge, which may pass from hand to hand indefinitely, and may renew its Youth youth, so to speak, as a defamation as long as the libel itself remains in existence, and hatch a new crop of " New Crop slanders, to be thrown hither and yon like thistledown at every sight of the libel, so that a printed slander, when published, takes a wider and more mischievous range than a mere oral defamation, and is more reprehensible in the eye of the law." In another libel case in which a newspaper made se- vere allegations of inducements alleged to have been made, by a candidate for election, to the colored voters of a community to procure their votes, the court wrote as follows: Renew Its Iatch a 70 Wit, Wisdom and Philosophy “To dangle a pardon for a thief before the eyes of the low companions and friends of the thief as an induce- ment for their votes at a public election, as one would hold out an ear of corn to an ox or ass to halter him, or take part directly or indirectly in such disreputable Del Hamstrings scheme, debauches public morals, hamstrings civic vir- Public Civic tue, and militates against the best interest of society. M Morals Virtue It is a palpably dishonorable breach of good citizenship. To be falsely charged with doing this libelous thing, calls on defendant to either justify, palliate, mitigate, or bring itself within some phase of the doctrine of privi. lege, or, failing, make just reparation. There are many technicalities and niceties in the law of libel and slander involving the offices of inducements, innuendoes, collo- quiums, and nice shading in the definition of terms. The subject matter is tender, society is not organized on an ideal basis, men are not perfect and the law doing the best it can, seeks practical and obtainable results, keep- ing in mind not only the rights of the individual man but the good of society at large. He would be a bold judge who would say that some of the learning is not incompre- hensible, or that there is not much discord in the cases. It seems settled that each case should stand on its own facts, since the language used is rarely the same. Such is the rule in the kindred matter of interpreting wills. Libel is as difficult of definition as fraud or negligence. There are many pointed ones in the books, but all of them are necessarily couched in general language.” The subject of negligence in legal exposition has called from this Judge varied and multiple expressions and it is under this title that some of his most famous utterances have been made. And in the definition of this important principle of the law came the opinion in the case called the “Celebrated Mule Case.” “If a man, says Justice Holmes, 'is born hasty and Wit, Wisdom and Philosophy 71 awkward, is always having accidents and hurting him- self or his neighbors, no doubt his congenital defects will be allowed in the court of Heaven, but his slips are not less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him at his proper peril to come up to their standard and the courts which they establish decline to take his per- sonal equation into account.' 'Verily, due care is the procrustean bed of the law all must lie on, nolens vol- ens.'" “Take another phase in the application of the law of negligence to crossing accidents, to-wit, that of the train's stopping or slacking its speed in order to save an exposed person from death or injury. It is no longer necessary to cite authority for the proposition that, when a person is exposed to imminent peril on a street or at a public crossing, then those who control the threatening oncoming instrumentality, and who see him, or who by due care might see him, in danger, must use care to avert his injury by stopping, if stopping is possible with the means at hand and safely usable. The master voice of humanity cries out for so much as that, and the law, an invention for the welfare of man, knows its master's voice and heeds it. It, however, is evident plaintiff's case cannot prosper on that theory. “So must appellant's learned counsel deal in refine- ments to fasten liability on defendant, and, maybe, re- finement against refinement (like estoppel against estop- pel) 'setteth the matter at large.' To predicate negli- Monu- gence on two seconds of time is in and of itself a monu- mental Refine- mental refinement. We cannot adjudicate negligence ment on such pulse beats and hair splitting, such airy nothings in surmise. It will be time enough for courts to under- take to do that when they are able to do what one Its Master's Voice 72 Wit, Wisdom and Philosophy Samuel Butler, nigh onto 300 years ago said his hero (?) did, viz. : 'He could distinguish and divide A hair 'twixt south and southwest side. Man Dollar Lineman And wisely tell what hour o' the day The clock does strike by algebra.'” “When in a court of justice, the man is fairly in bal- ance with the dollar, as would be the case on ... that hypothesis, then it is the man goes down in the scales and the dollar kicks the beam. The man comes first in Glories of the law. It is one of the glories of the law that it is so the law written in the books.” " ... a man climbing a pole has troubles incident Cenne to the fact that he belongs to the genus homo sapiens, Homo and his native home is on the ground, i. e., he has troubles of his own to look out for. Any one who ever climbed a tree knows that his feet, legs, arms, hands and body, all demand and divide his attention. So the dan- ger of falling not only makes some fear natural, but makes a call on his mind.” In the following we are served with much information of the life, habits, “genealogy," and general characteris- tics of the mule, for the sake of doctrine. “It was Dr. Johnson (was it not?) who observed that Oliver Goldsmith had 'contributed to the innocent gay- ety of mankind.' (Nota bene: If, as a pundit tells me, it was Garrick, and not Goldsmith, Johnson spoke of, and if, in quoting, I misquote, then memory has played a trick upon me, and a learned bar will correct me. Time and weightier matters press me to go on and leave the 'quotation' [?] stand.) The function of this suit is some- what the same. Beginning with the ‘J. P.'s' it has reached the ‘P. J.’s' and in its journey has run the gamut of three courts, one above the other. Now, secun- Wit, Wisdom and Philosophy 73 dum regulam, it, a fuss over $5, has reached the highest court in the state for final disposition—all this because (1) of divergence of opinion among our learned brethren of the Springfield Court of Appeals, and (2) the provi- sion of the constitution in that behalf made and pro- vided. However, if the amount at stake is small, the value of the case for doctrine's sake is great. As I see it, the case is this: Dale, a man of substance, a farmer, owned a brown and a gray mule, both young and of fine growth; one saddlewise, the other otherwise. Both, used to the plow and wagon, were entitled to the designation 'well broke and gentle.' One Parker was Dale's man- servant, and in the usual course of his employment had charge of these mules. On a day certain he had driven them to a water wagon in the humble office of supplying water to a clover huller in the Ozark region hard by its metropolis, to-wit, Springfield. Eventide had fallen, i. Eventide e., the poetical time of day had come when the beetle wheels his droning flight, drowsy tinkling lulls the dis- tant folds, and all the air a solemn stillness holds. In other words, dropping into the vernacular, it was time to Watchdog's 'take out.' Accordingly Parker took out with his mind Honest fixed on the watchdog's honest bark baying deep-mouthed Bark welcome as he drew near home; he mounted the ridable mule. He says he tied the other to the hames of the harness on the ridden one by a four or five foot halter rope, and was plodding his weary way homeward a la the plowman in the Elegy. The vicissitudes of the jour- Elegy ney in due course brought him to Walnut street in the City of Springfield. At a certain place in that street the City city fathers had broken the pavement and made a 'rick Fathers of brick' aside a long hole or ditch. Hard by this rick of brick was a ridge of fresh earth capped by a display of red lantern danger signals. It seems the unridden mule crowded against the ridden one and harrassed Par. Circum- jacent ker by coming in scraping contact with his circumjacent le Wit, Wisdom and Philosophy Water Wagon leg. Any boy whoever rode the lead horse in harrowing his father's field will get the idea. In this pickle he took hold of the halter rope, still fastened to the hames, to keep the unridden mule from rasping his said leg. It might be well said at this point that witnesses for plain- tiff did not observe that the end of the rope was attached to the hames of the ridden mule. As will be seen a bit further on, at this point a grave question arises, to-wit: Is it negligence to lead a mule by hand, or should he be fastened 'neck and neck to his fellow? But we antici. Neck and Neck pate. Going back a little, it seems as follows: At about the time Parker had reached said part of Walnut street, plaintiff and two others were in a buggy pulled by a single horse and on their own way to the country. So equipped, these several parties met face to face. At this point it will do to say that, while the mules were used to being on the water wagon, it is not so clear that these travelers three were. There are signs of that artificial elation in the vehicle party that in the evening springs from drinking 'breathing freely'), but on the morning after produces the condition of involuntary expiation Dr. Von Ihring calls ‘katzenjammer.' They disavow be- ing half seas over or drunk. Their chief spokesman, as descriptive of the situation, in part told his story mathe- matically in this fashion: 'I had not drank so much but what I kept count. I can keep count until I take three and hadn't quit count- ing yet.' ... “In the course of their journey they, too, came to the brick rick, the ditch, the ridge of dirt, and the red lights on Walnut street. There they met, as said, the gray and brown mule and Parker face to face. When mules and rider approached and passed the three travelers, all on the same side of the ditch, the lead mule (whether scared by the hole in the ground, the rick of brick, or the ridge is dark) shied from his fellow (“spread' himself), and Face to Face Wit, Wisdom and Philosophy 75 and presently his hind leg was mixed up with the shafts and wheel of the buggy. When the status quo ante was re- established, both leg and wheel were found damage.i. Subsequently a blacksmith offered to repair the damages to the wheel for, say, a dollar and a half. This sum de- fendant, though denying liability, was willing and of- De fered to pay; but plaintiff's dander was up, and he, as Was Up owner of the buggy, demanded a new wheel worth $5, and sued. In the justice court defendant lost outright and appealed. In the circuit court the same. The learned judges of the Court of Appeals could not agree (the furor scribendi being much in evidence, and three learned opinions falling from their several pens) and sent the case here—and here it is. My Brother Graves has well disposed of it on certain grounds, but the theme being the Missouri mule, and state pride calling for further exposition, the furor scribendi has seized me- witness: It was argued that it was negligence to ride one mule and lead its fellow by hand. That they should be halter-yoked 'neck and neck.' Parker says he necked them in a way, but plaintiff takes issue on the fact. Al- lowing credit to plaintiff's evidence, two questions spring, viz.: First—Is the neck-and-neck theory 'mule mule law' in this jurisdiction? Second-If so, then was the absence of the neck and neck adjustment the proximate cause of the injury? We may let the first question be settled in some other mule case and pass to the second as more important. It will be observed that the neck and forequarters of the mule did not do the damage. Con- tra, the hindquarters, or 'business end of the mule were in fault. We take judicial notice of facts of nature. Hence we know that haltering a mule neck and neck to another will not prevent his hind parts spreading. His neck might be on one line, but his hind legs and heels might be on another—a divergent one. True, the mental concept relating to shying or spreading would naturally Missouri Mule ule Law Business End 7 6 Wit, Wisdom and Philosophy originate in the mule's head. But it must be allowed as a sound psychological proposition that haltering his head or neck can in no wise control the mule's thoughts or control the hinder parts affected by those thoughts. So much, I think, is clear and is due to be said of the Mis- souri mule whose bones, in attestation of his activity and Bones worth, lie bleaching from Shiloh to Spion Kop, from San Juan to Przemysl (pronounced, I am told by a schol- ar, as it is spelled). It results that the casual connection between the negligence in hand and the injury is broken, and recovery cannot go on the neck-and-neck theory. This because it is plain, under the distances disclosed by the evidence, that the mule's hind legs could reach the buggy wheel in spite of the neck-and-neck attachment. The next question is a bit elusive but seems to be lodged in the case. It runs thus; “There being no evidence tending to show the mule was ‘wild and unruly' as charged, is such a mule per se a nuisance, a vicious ani- mal, has he heart devoid of social duty and fatally bent on mischief when led by a halter on the street of a town, and must his owner answer for his acts on that theory? Attend to that view of it: “There are sporadic instances of mules behaving badly. That one Absalom rode and 'went from under' at a crisis in his fate, for instance. So it has been intimated in fireside precepts that the mule is unexpected in his heel action, and has other faults. In Spanish folklore it is said: He who wants a mule without fault must walk. So, at the French chimney corner, the adage runs: The mule long keeps a kick in reserve for his master. "The mule don't kick according to no rule,' saith the Ameri- can Negro. His voice has been a matter of derision, and there be those who put their tongue in their cheek when speaking of it. Witness the German proverb: Mules make a great fuss about their ancestors having been asses. And so on, and so on. But none of these things So On Went from Under And Wit, Wisdom and Philosophy vince of Asia Minor, and the fact is not chargeable to the mule. So slowness of the domestic ass does not descend as a trait to the Missouri mule. It is said that a thistle is a fat salad for an ass' mouth. Maybe it is also in a mule's, but, be it so, surely his penchant for homely fare cannot so far condemn him that he does not stand rectus in curia. Moreover, if his sire stands in satire as an Satire emblem of sleepy stupidity, yet that avails naught, for the authorities (on which I cannot put my finger at this moment) agree that the Missouri mule takes after his dam and not his sire in that regard. All asses are not four-footed, the adage saith, and yet to call a man an 'ass' is quite a different thing than to call him ‘mulish.' Vide the lexicographers. Furthermore the very word ‘jackass' is a term of reproach everywhere, as in the literature of the law. Do we not all know that a certain phase of the law of negligence, the humanitarian rule, first announced, it has been said, in a donkey case (Davis v. Mann, 10 Mees. & W. 545) has been called, by those who deride it, the ‘jackass doctrine ?' This on the doc- trine of the adage: Call a dog a bad name and hang him. But, on the other hand, to sum up fairly, it was an ass that saw the heavenly vision, even Balaam, the seer, could not see and first raised a voice against cruelty to animals. Num. 22: 23 et seq. So, did not Sanco Panza Sanco by meditation gather the sparks of wisdom while am- bling along on the back of one, that radiated in his won- derful judgments pronounced in his decision by the common-sense rule of knotty cases in the Island of Bara- taria ? Did not Samson use the jawbone of one effect- ually on a thousand Philistines? Is not his name im- perishably in that fifth proposition of the first book of Euclid—the pons asinorum? But we shall pursue the subject no further. "Enough has been said to show that the ass is not without some rights in the courts even on sentimental grounds; ergo if his hybrid son, tracing his Balaam Panza Samson 80 Wit, Wisdom and Philosophy limb but to make it possible to save life and limb. But we say: Run so fast in towns that you cannot stop where life and limb are likely to be or are in peril, and you are quit of liability. Fast running creates inability to stop. Inability to stop creates immunity. Hence break the speed ordinance and be acquit. Nor need we bother with the question of the duty to look out for decedent. The engineer saw him; that was one fact on which the liability hinges. Closer home, he saw him in time to stop if he had been obeying the law. That was a remaining and necessary fact to fasten liability on the de- fendant. Shall it be allowed to set up its servant’s law- less act that it may escape liability and thereby profit by its own wrong? Thereto the maxims are abundant and cover every angle of the matter, for example: A man should not be benefited by his own wrongdoing. A right does not arise from a wrong. The law hateth a wrong. No one can improve his condition by his own wrong. Any process of reasoning leading up to that conclusion must be unsound, because the conclusion is absurd. The right doctrine is: Correct reasoning leads to correct re- sults; if then, the results be incorrect, the reasoning is bound to be unsound; for are not the general principles of the law the very perfection of reason. ... To my stie mind it is of stiff significance that in none of those Signifi- grounds for reversal did veteran counsel make the point cas now made by our learned Commissioner. What they could not see with eyes brightened and freshened by the tears (I speak, of course, in figure only) of defeat, should we see? Why be astute to that end? Or, if we think we see it, are we not likely to see only a will o' the wisp ? "the Wisp Will o' Under our rules they are not allowed to argue a point not made in their briefs. Shall we argue it for them? ... Ordinary care began with the rate of speed and required obedience to the law, so that ordinary care in stopping would have a chance to fill its due office. If, now, dis- cance Tears of Defeat Wit, Wisdom and Philosophy 81 Nothing But a Voico obedience to the law makes it impossible to stop, though ordinary care in the mere matter of stopping was used, shall defendant be absolved for carelessly putting it out of its power to stop? That would be, as heretofore said, an invaluable excuse for law breaking. Nay, more, and most of all, it would be a suggestion to break the law and thereby escape liability and avoid duty. I think it would make of the law (not a rule of action, but) what some wise old Latin said of the nightingale, viz.: ‘Vox et praeterea nihil,' which a scholar tells me means, if liberally Englished, “a voice, and nothing but a voice.' In my opinion ordinary care in this case involved the concept of using ordinary care in speed so that ordinary care in stopping would result in attaining the benevolent purpose of the ordinance. The two phases of ordinary care belong in the case. They are, I submit, inseparable in logic and inseparable in common sense. They sit like 'two kings of Brentford on one throne.'” On the subject of contributory negligence the court made the following pointed comment. “We know very well that the proposition is abroad in the land that the doctrine of contributory negligence Anvil of Public should be exploded. We know too that that proposition is being hammered out on the anvil of public discussion, and in some other jurisdictions has been crystallized into written law. We take it that if a new and refined sense of social justice ever requires that, in the first instance, the carrier pay remunerative damages for an injury, al- though the servant contributes thereto by his own negli- gence (or even when the master is not negligent), and, in the second instance, that the loss should be shifted by distribution over on the general public, as it would be under known and immutable economic principles, then the same new and refined sense of social justice will re- quire that means of payment, through a proper adjust- ment of rates for freight and passenger carriage, be pro- Discussion 82 Wit, Wisdom and Philosophy By the vided at the same stroke. But this is by the way. We Way are not now called upon to write the law under such cir- cumstances, for that would be writing it as it is not and not as it is. If, as maintained by some publicists, the defense of contributory negligence be an evil in the law; if the multiplicity of squabbles that arise over the appli. Multiplicity of cation of the alleged refinements of that doctrine be de- Squabbles fects calling for a cure by striking at the root of the matter, and not cured one at a time, as mosquitoes were Slapdash once killed (we borrow a similitude), but slapdash in salutary fashion and by wholesale, as science now teaches, then we must bide the time the lawmaker first speaks in that behalf and so writes it down.” In an action to injoin a railroad to do certain things on Sunday the court wrote at length about the Sabbath, religious liberty and the Missouri constitution. “No man warring for God should be troubled on the Sabbath by secular business (Nemo militans deo im- plicetur secularibus negotiis). The constitution of Mis- souri may be likened unto a book of the law whose lids Golden and leaves are tenderly fastened with a golden hasp, and Hasp that hasp is the solemn and reverential recognition of God as worthy of the worshipful adoration of every ra- tional being—witness the first words, the noble preamble of the Constitution: ‘We the people of Missouri, with profound reverence for the Supreme Ruler of the Uni- verse, and grateful for his goodness, do, for the better government of the state, establish this Constitution.' ... The analysis of that preamble is worth while to further the purpose in hand. Notice: It recognizes God, a ‘Supreme Ruler,' 'Ruler' implies a kingdom, at Profound least a spiritual kingdom, a kingdom of God. It speaks Reverence for him in the profound reverence from every Missourian. It solemnly expresses to Him the gratitude of all the people; thereby intimating the personal duty of grati- tude on the part of all of us and acknowledging a gift Wit, Wisdom and Philosophy 83 at His hands in the form of 'His goodness.' It goes further and by necessary implication states that for and on account of these things and in furtherance of them, by an uplift of the people through orderly fundamental laws, the Constitution is established ‘for the better gov- ernment of the state.' The people as sovereigns, acting through their Constitution makers, did not take the pains to give reasons for their belief, whether those reasons Natural are found in divine revelation or natural reason. They Reason did not argue or quibble about the existence of God or our duty to Him. To the contrary they calmly assumed there was no such thing as disputing about first prin- ciples, they assumed those things as established facts to be accepted by all men, whether (as Pope says) by the poor Indian whose 'untutored mind' hears Him in the wind or sees Him in the clouds; or by the philosopher, reasoning from effect back to first cause, who sees His divine hand in the spacious firmament and acknowledges His handiwork and His glory as declared by the starry host of heaven as Addison sings. It would be a matter of profound wonder and sorrow if the statutes of a state governed by such a written Constitution were allowed out of line with the lofty sentiments, intimations and public policy of the fundamental law. ... Tracing the public policy evidenced by the Constitution and the laws we have been considering, to its ultimate sources, it becomes certain that our Constitution and statutes only tend to outline, preserve, and aid such public policy; they in no sense create the public policy of recognizing God and religious worship and of setting Sunday apart from secular and business days. They are but unmis- takable tokens, symbols, signs, evidence of a public pol- icy coming down to us by inheritance in a long line of descent from our fathers—a policy hallowed by time and a thousand sacred memories, tenderly cherished in the hearts of our people, so omnipresent, so persistent as to Starry Host 84 Wit, Wisdom and Philosophy ivine admit of being personified. It now sits and always sat or should sit, by the household fire of every Missourian's Sipping From His home ‘sipping from his cup and dipping from his dish.' Cup To ignore or impugn that policy by statute, to my mind, is to cut every patriotic Missourian to the bone. It seems as clear as the noon-day sun to me that the stat- utes and constitutional provisions named are the crea- tures of, they spring from, that public policy, as the children from its loins. Surely, withal, before they were, it was. Human nature itself, with an exceedingly bitter cry, cries out for rest one day in seven. Observe, too, there is exceedingly high and very old authority for rest from toil one day in seven, and not only so, but for mak- ing that day of rest a sacred day, commemorated of and associated with a divine event. Witness: Remember Event the Sabbath day, to keep it holy. Six days shalt thou labor, and do all thy work. But the seventh day is the Sabbath of the Lord thy God. In it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy man- servant nor thy cattle, nor the stranger that is within thy gates; for in the six days the Lord made heaven and earth, the sea and that which is in them, and rested on the seventh day. Wherefore, the Lord blessed the Sab- bath day, and hallowed it. The ancient pious Hebrew Heathen Authority was not alone in that view. There is a good heathen au- thority for the existence of a world-wide public policy in former times connecting and associating a day of rest with a day devoted to sacred rites. Says Strabo: 'The Greeks and Barbarians have this in common, that they accompany their sacred rites by festal remission of labor.' Nor is it an over statement to affirm that a state that borrows the motto on its great seal, as does Missouri, we from the 12 tablets of heathen Rome, may, without ser- Tablets ious question, be allowed to borrow the basis of its public policy against secular labor on Sunday, ... from the ten commandments of the living God. The time was elve Wit, Wisdom and Philosophy 85 when the dry letter of the commandment was interpreted and construed, ex cathedra, by one who spoke as having authority, and thereby its soul and sense was made to shine through its mere letter. Vide Matt. 12:1-13; Mark 2:23 et seq.; Luke 13:14 et seq.; Id. 14:5. That inter- pretation, when read into its letter, shows that the in- terdiction of the commandment at bottom was not levelled at daily offices of necessity springing from hunger and Benefit thirst, nor at works of charity for the benefit of man. of Man Therefore, being hungry, we could appease our hunger (i. e., plucks ears of corn to eat). So the afflicted may be healed on the Sabbath day; so a sheep or an ox fallen into a pit could be lifted out on that day. The control- ling and root ideas, as announced, are: the Sabbath day was made for man and not man for the Sabbath. Mark 2:27. It is lawful to do well on Sabbath days. Matt. 12:12. All of which, further interpreted, means that the commandment is not, in and of itself, the end to be at- tained, but a means of attaining an end, namely, a help toward realizing the greater ideal in the mind of the law giver, viz. : love to God as well as love to man. Nay, love to man, in a true and lofty sense, is love to God. So runs the immortal dream of Abou Ben Adhem, and so Abou Ben Adhem said the Master: “Therefore all things whatever you would that men should to you, do ye even so to them: for this is the law and the prophets.' The exemption in our statute defining Sabbath breaking whereby one is allowed to perform labor and work in the household offices of daily necessity,' or other work of necessity or charity on Sunday, but embodies those sacred precepts, and gives effect to the interpretation by the Master of the commandment he was charged with violating. It but transferred His interpretation over into our written law. It would be unprofitable for a court of justice to en- Theological tangle itself in those ancient time-worn, theological con- Contro- versies troversies, the echo of which is heard even now incident 86 Wit, Wisdom and Philosophy to a change in the sacred day from the seventh day of the week, the Jewish Sabbath, to the first day of the week, the Christian Sunday. We dismiss that phase of the matter with this remark, it is allowed to be a commonly accepted historical fact that the resurrection was on Sunday, the first day of the week. Therefore the early Christian, as a spontaneous and beautiful expression of fealty and devotion, kept that day, for obvious reasons, as sacred, and, beginning with Constantine, Christian rulers and Christian law givers and law makers have recognized the day as having the same purpose as the ancient Sabbath and as taking its place—our statute (as seen) referring to it indifferently as ‘Sunday' as the Sabbath. “Have the history, the traditions, the public policy of our people, have the state and condition of those for whom our present constitution was intended, changed in so much as one jot or tittle? Do we no longer sympathize in any common reminiscences of the past? Should we in a roundabout and indirect fashion now hold that the Christian religion was not the religion of the framers of that Constitution? Or that Sunday was a day to be lightly treated by the law makers? Are we at last, in- Odds and deed, to become a conglomeration of odds and ends, of Ends strangers from all quarters of the globe; or, are we a homogeneous people whose constitution is to be read in the dry sunlight of our common faith and sacred tradi. tions? A judiciary that fails or refuses to read the laws in the light of the state and condition of those for whom the laws were intended, or construes them contrary to the trend of settled and historic public policy, or fails to brand laws running contrary to the spirit of the con- stitution as void, fails of performing its solemn func- tion. If we were to read out of our constitution and laws all protection for the beliefs, and all support for the public policy of this Christian state in regard to Sunday, Solemn Function 88 Wit, Wisdom and Philosophy Plenary Liberty with the idea that the state can coerce this or that reli- gious observance on the part of the citizens. Verily, freedom flies out of the window when force comes in at the door. . . . What is religious liberty if this law does not invade it? If plenary liberty to worship al- mighty God by observing Sunday as conscience points be given men by the constitution (as it is), may it be halved, quartered, or in aught whittled away by the legislature? What says the maxim ? That is not con- sidered as truly belonging to any one which, upon occa- sion, can be taken from him. I think the law-maker dar- ingly laid his hand on the very ark of the covenant of Covenant religious liberty in passing this law, and I make bold to repudiate its validity in whole or part, in letter and spirit. Liberty has no price. It is an inestimable thing, and is more favored by the law than anything else. Like the air and the sunlight, we appreciate it best when we are denied it. ... In these times of yeasty un- rest it may do to say that its doctrine may be likened, top reverently use a pious metaphor, unto a house built on a Metaphor rock by a wise man; and it fell not from the rains that descended, or the floods that came or the winds that blew and beat upon the house, for it was founded upon a rock. Its doctrine remains now as when uttered, the serene and majestic voice of reason and law. As for me, I rest on the reasoning of that case with entire and satis- Judicial fied judicial tranquility, declining to be blown about by Tran. quility every new wind of doctrine.” LOGIC, LAW AND NEW TRIAL “We have been moved to say what we have about a new trial in a reference case, because logically, on strict and last analysis, a new trial might mean beginning all over again in hearing testimony. It would mean that in a jury trial. But the trial undone here by the court's order is not a jury trial. It is a trial by the judge after Voice of Reason 90 Wit, Wisdom and Philosophy through the court of conscience to prevent his own prose- cution or escape the penalty that would follow his con- viction, then the case stands precisely as if he is the real party in interest and is suing in his own name; for equity looks to substance, not to form. The discriminat- ing and piercing eye of the chancellor looks inside the shell of the nut of the suit to the kernel itself, and his hand would remain passive. The trouble in the case to my mind is that plaintiffs, unless cast on the doctrine of unclean hands, have a clear right to an injunction. If the county court of Jackson county proposes in the name of all the taxpayers to use a common fund raised by taxation as a reward or, putting it softly, in pay- ment of witnesses to aid in the prosecution, then I have nothing to say about the wisdom or unwisdom of that course, but I do say this: there should first have been appropriate legislation in the form of a general law that applies to every county in the state permitting such ex- traordinary expenditures-expenditures that are con- fessedly outside of all legal warrant. We shall recur to the facts presently. It was argued with vehement ani- Vehement Animation mation at our bar that the 'people’ demanded the appro- priation, that (as we gather it) the people were watching with eager and suspicious eyes first to spy out and then mark with condemnation any effort to thwart their will in that behalf, and so on, and so on. As to that view of it, should not this court be serene, steady, and cour- I ageous enough to point with inflexible finger to the law? Finger Peradventure, law is the flag we should follow. This court is organized to subserve the wish and will of the people, expressed how? Expressed through the form of the law, not the alleged will and wish of the people con- Blaze of veyed to us by extraneous means with the heat and blaze Flights of Oratory of oratory or flights of rhetoric." Rhetoric “A motion for a new trial in the system now in vogue fills a substantial and useful office in administering jus- Infexible Wit, Wisdom and Philosophy tice through the courts. Questions are suddenly sprung on a trial judge by versatile and ingenious counsel dur- ing the hot-foot of a trial, which he perforce must decide Hot-foot without taking time to consider. No mortal judge is al- lowed to be so incomparably recondite and ready as to know all the law all the time. If he know all the law some of the time, or some of the law all the time, or some of the law some of the time (thereby putting himself out- side of the class of those who know none of the law none of the time), he rises to a permissible highwater mark of excellence.” On the jury system of the country, a much debated question by all, the court makes some very interesting remarks. “May not one with propriety (when the yeast of rad- ical novelty is working in judicial dough and one does not know what the loaf to be baked in the oven of events may be) take leave to recur to first principles and ob- serve, to wit, that the invention of a jury to weigh and determine the credit due to human testimony, and set- tle facts in doubt or dispute in a trial at law, is to be rightly taken as one of the splendid achievements of Mortar of civilized man. While not ideally perfect, yet having Experience been brayed in the mortar of experience with the pes- tle of common sense, as human institutions run, trial by jury has stood the test of use and justifies itself as Sour-Com- indispensable. No one but a sour-complexioned cynic plexioned now impugns it, no one but an inconsequent dreamer Cynic suggests a substitute. A jury trial ‘is the most cher- ished, if not the most valuable, institution we have de- rived from our Saxon ancestors.' ... The average judgment of twelve jurymen of average sense, drawn, as they are, from all the walks of life and impartially selected (“whose learning consists only in what they themselves have seen and heard' and who apply 'their separate experience of the affairs of life to the facts 94 Wit, Wisdom and Philosophy nor Bunyan nothing. It is a tempest in a tea-pot; for he can reject Tempest in the the jury's bad advice and, notwithstanding the same, Teap do equity by his decree." “Twelve very cool, dispassionate, and just men (through' no heat of passion or twist of prejudice, and out of no flippances in mere form or veneering of gal- lantry), put to it by their oaths and the facts, might well have rendered such a judgment as adequate com- pensation to a young woman handicapped through life as Miss F. is shown to be, for true it is the race is not always to the strong and swift, and yet a happy mind at ease in a sound body is the essence of good. Bunyan held this in mind when he made his immortal hero loosen and lose the burden weighing him down in his journey to the Celestial City and the Delectable Moun- tains; and peradventure, Diogenes hinted at it when he Diogenes waved Alexandria's princely offers to one side and asked him (and Buchepalus, too, maybe) to get out of his sun light.” “Men, under oath in a jury box, taking a sober and vital part in the administration of justice, self-evidently are presumed by the law to be reasoning men—to be apt in solving the problems of life by the aid of reason; i. e., everyday sense. There ought to be no presumption in- dulged in that, unless fenced in by the court at every single step, they will be prone to wander from the beaten path of reasonable certainty and probability (a path where effects are referred to their causes) and amuse themselves with wild goose chases in by-fields of airy guess and unreasoning conjecture—they might possibly be-—the material out of which old wives, with pipe in mouth, once construed their fables by nook and by ingle.” “Our decisions are rich with learning showing solid reasons for the aversion of the courts to allow the im- peachment of a verdict by affidavits of jurors lifting Wildgoose Chases Wit, Wisdom and Philosophy 95 the veil of the jury room, disclosing its secrets and per- petuating its animosity.” Animosity Social Status A great many interesting things may be learned on the subject of matrimony by what follows: “Matrimony was 'the contract ... in issue and on trial. At bottom it was the very 'cause of action in issue and on trial.' Therefore, the mischiefs under the ban of the statute gave birth to a situation to be nar- rowly eyed. That situation vehemently calls for the statutory interdiction. This, because the danger of per- jury in this character of case is enhanced by a combina- tion of powerful impulses, viz., to cleanse her social status from a scarlet letter of sexual impurity, and with Sexual the same stroke line her pockets. Prestige! Money! Impurity The love of both-master passions of the human breast -in full cry. His legs go far and fast, who is running to a goal of gain and honor. Not only so, but Bishop being dead, the danger of exposure in false swearing is reduced to a minimum and may invite the hazard of the experiment. ... One vital flaw in this offer consists in the fact that it takes two to make a bargain in matri- mony. If one believes and the other does not, the belief of the one does not tend to prove the contract. If this were not so, then, as plaintiff did not believe in common law marriages under this record, her lack of belief dis- proves the contract by the same token, ergo, the evi- dence leaves the issue where it found it. . . . We know then it is strange and fear it is new. As all things are confirmed or impugned by either reason or au- thority, let us look to its reason and see how the prin- ciple would work in practice. Suppose the issue be an act, a fact, for instance, some sin or delinquency- drunkenness, lying, profane swearing, anger, or, lazi- ness will do. Under this new doctrine the door would be opened wide to evidence on a collateral issue, viz. : that the party charged with the act, fact, or delin- 96 Wit, Wisdom and Philosophy Peppery Disposi- tion quency, did or did not believe in drinking, in lying, in swearing, in anger, or in laziness as a correct ethical proposition—the argument being that, if he believed in none of them or, e converso, if he believed in them he did all of them. There would be startling results reached by that method of reasoning; for, verily, many a man lies who down in his soul believes in truthfulness, and drinks who by precept teaches the virtue of soberness, and has a peppery disposition who believes in calmness, and sins who thinks well of righteousness, and is lazy while lauding ant-like industry. ..." In a case depicting an unusual court room scene, in- volvingmarital infelicity, to such an extent that the court wrote of it with fear of "disturbing judicial calm- ness” the following may be read with interest: “The record is long and much of the testimony is in such conflict as to make the task of reconciling it a hopeless one. So the discourse of some of the witnesses flies so high it cannot be followed without precaution against danger of disturbing judicial calmness. For in- stance, we are sorry it justly deserves such observations as these: If we believe everything testified to on both sides by narration and suggestion, plaintiff would be a good husband, an industrious, sober, successful me- chanic and contractor, who never drank 'to do any harm,' who always made good wages and fair profits, and who made it a rule to turn all he had over to his wife from the date of their marriage in 1880 down to their separation in 1907. Contra, and by the self-same token, plaintiff would be an unsuccessful saloon keeper at the outset, then a mechanic generally running behind on all his contracts, who made little above the expenses of his family, a frequenter of saloons nightly, a man who got drunk and into fights (in one of which the com- batants rolled into the creek), who spent his substance in 'gambling hells' and riotous living, and was an alto- Wit, Wisdom and Philosophy 97 Hand to Mouth gether indifferent husband. So we would believe that Indifferent Husband defendant got her property start solely by an out and out gift of her father and mother ... who were people of means, and who often assisted her with money when she needed help. By the same token we would be- lieve that the (parents) lived in a shanty, from hand- to-mouth, and had no means to speak of, and, while they made small loans to the Morrises that were repaid, yet they never gave Mrs. Morris anything whatever as a gift or advancement. Again we would believe that Mrs. Morris was assaulted and beaten 'black and blue' by plaintiff's fists, and that she left his home because of Unpro- such unprovoked savagery. By the same token we voked would believe, contra, that she got (to use the words of Savagery Mr. Morris) 'whooping drunk,' was making a spectacle of herself in the house yard, and, when in that pickle, he left off reading his evening newspaper, and with manly gentleness was trying to take her into the house to hide her shame, which polite but firm conjugal thoughtfulness she resented, and without cause then and there left his bed and board once for all. Furthermore, we would believe that he never at any time laid as much as the weight of his hand upon her in anger; contra, lis- ten to this from the record: “Mr. Dolman: Don't you know, as a matter of fact, that Mr. Morris never laid a hand on you in his life? A. Indeed, he did; and I have been the mother of seventeen children, and they should have all been here today, with that daughter that is here against me, but he kicked me around the prairies of St. Joseph in those days, and I laid for nine months after that, one time when Walnut street was be- ing graded. I was the mother of twins three different times and during one of those times, at twelve o'clock at night, he abused me for going over and getting my horse. He was too cowardly to go and get the horse.' Moreover, we would believe that Mrs. Morris (though Twins Wit, Wisdom and Philosophy 99 More Voluble Than Valuable Afraid of God controlled, it seems, by neither the laws of the land nor by those of social usage, by neither court nor counsel, so that their testimony, by spells, was more voluble than valuable, more tart than true. To show the tension and color of feeling breeding contradictions and feverish- ness, we will mention some incidents throwing light on the situation, and, we think, justifying such conclusion. Mrs. Meister's given name was Mary. While on the stand she said she had heard her mother remark, when she was a little angry, that her father ‘didn't have any right around there, and that what was there was hers alone.' At such times ‘she also made the remark that when he got old and couldn't work any more she wouldn't have him around her.' At this point her mother raised her voice in open court to the effect fol- lowing, to-wit: 'Are you afraid of God, Mary? I raised you well, but you don't show it.' Referring to her eighty year old grandmother who got hurt when her parents had their last quarrel, on the cross-examination of Mrs. Meister the record shows thus: 'Q. He pushed this lady, over eighty years old, into a wood pile? A. He had to do it to protect himself from her. Q. And when he pushed her into the wood pile, did she receive any wounds or bruises, or do you know? A. Well, I couldn't prove that. She had been hurt in a railroad wreck, and any marks she had I couldn't tell. Q. You saw marks though ? A. No; I thought she was just like a snake. I wouldn't touch her. Q. You left her lying Snake there in a crippled condition ? A. Why, she was not in a crippled condition. The next morning she came into our house. Q. You would not handle her on that occasion, would you? A. No; I don't believe I would touch her. Q. If she had been in a dying condition you would not have touched her? A. No; I wouldn't. Q. You would have seen her die there without trying to do anything? A. Yes, sir.' We are moved at this point 100 Wit, Wisdom and Philosophy Sythians to make a remark or two and pause long enough to do so, viz. : the Scythians, it is said, ate their grandmothers when through with the old ladies, but Mrs. Meister would not even touch hers in extremis. She also had droll notions as to grandfather's hats (and heads). Vide the following: after testifying that Grandfather O’Rouke called her 'pretty bad names,' she said she 'picked up a brick,' and threw it at him, “knocking his hat off.' At this point the witness, without leave, left the stand and court room, apparently unseen by coun- sel who, busy objecting and saving exceptions, had other Other Fish fish to fry than to watch her movements. We think so, to Fry because we find that Mr. Boyd, counsel for defendant, returning to his cross examination, began a question as follows: ‘I will ask the question - Thereat, inter- rupting, the court said: 'Well, the witness is gone now, Mr. Boyd'. Another witness for the plaintiff, Mr. Nichols, took flame from the prevailing fire. He was asked by Mr. Boyd the following question, and made the following answer: 'Q. Then you say you never spoke to a human being concerning what you knew, and what you could testify in this case, until you came on the witness stand? Do I understand you that way? A. Well, you can understand it that way if you want to. Q. Well, is it true? A. It is true! God damn you ! ... That she was a phenomenally frugal housewife with an eye to laying by we are convinced. Her sister called her an extremist in economy,' and we will let it go at that. Maybe there is where the marital shoe- Shoe pinches. We think it is a fact, also, that in some in- stances she bought property on her own initiative and in others on his, and that generally they consulted each other on matters of that character. Both had sharp and unruly tongues with the rough sides (hers the sharper of the two). They now and then forgot the pre- cept that to return abuse for abuse is but to heap mud Extremist in Marital Economy Mud on Mud Wit. Wisdom and Philosophy 101 on mud. Both had other failings, but we may as well put them to one side, for the law of the case does not hinge on them, and a woman in this court is to have a little latitude if she is the mother of seventeen children. There came a time when they no longer agreed at all as spouses, but (more's the pity) had a bitter quarrel and their paths parted forever. Close observers of the phe- nomena of human nature have noticed that sometimes quarrels exhaust themselves with excess of fervor and fury, and thereby die out. So, peradventure, pots (boil. ing too fiercely) boil over, put out the fire underneath, and cool off.” The following is on the subject of marital infelicity and domestic relations : “There remains the question of her marital conduct. We have gone over this long record with an eye to that fact. It tells a miserable story—a story once preserved in the pages of the reports, and which need not be spread A Don again of record—a story of a domestic drama, acted on Drama the stage of the lives of these two. Its curtain lifted on a scene bright with hope, and was run down on one bit- ter with ruin and despair. We cannot say the wife was altogether blameless. Much less can we say that the husband was not greatly to blame; he being the head of the house and charged with the duty of ruling with tact, chivalry, justice, and sweetness. For both parties often forgot that ""As one lamp lights another, nor grows less, So nobleness enkindleth nobleness.' “Forgot that a false word turneth away wrath, that it takes two to make a quarrel, that charity and cardinal virtue cover a multitude of faults, and that to forgive and forget is the golden rule of marital felicity. The curious may find the minutiae of the misery, misunder- standings, wranglings, quarrels, sarcasms, oaths, the estid Cardinal Virtue 102 Wit, Wisdom and Philosophy threats and acts of hatred uncovered by the record set forth in the opinion of Judge Broaddus in . . ., supra. We have compared that opinion with the record, and approve the conclusions in the meting out of praise and blame.” .... “As I have more than once taken occasion to say, it is an anxious and delicate task to reconstruct ancient matters with fidelity and in just relation and true perspective, when some of the actors are dead; when papers are lost or destroyed; when memory, the main reliance, is twisted by self interest or family quarrel, or Flux of dulled by the flux of time when conclusions (as wishes, Tuis father to the thought) usurp the office of fact; when parties did not deal with each other in correct business form, but loosely, under the close and tender confidences of the domestic relation, and not at arm's length under the safe-guards of a due course of business." Tender Confi- dences EXAGGERATION OF HUNTSMAN AND FISHERMAN “Indeed, we own to being a little inclined to take judicial notice, that, barring a mild and (it may be) innocuous form of exaggeration in narrating personal exploits (noticed by close observers and shyly com- mented on now and then in private discourse), neither huntsman nor fisherman are addicted to the venal vice of fraud for gain in matters pertaining to their associ- ated dealings. It was Jacob, mark you, and Rebecca, not Esau, the hunter, who covinously contrived a notable .property fraud (q. v.). And when Simon Peter (wor- ried by trouble and despair) sayeth, 'I go a fishing,' and the others said, 'we also go with thee,' did they not touch a cord and set it vibrating to this very day in many a wholesome bosom? Did not the immortal Izaak Walton say—but, under a spell of gentle memo- ries, we may be straying just a little afield_'Revenons a nos moutons.?" Wit, Wisdom and Philosophy 103 Gathered to Their Fathers HISTORIC LAND TENURES IN MISSOURI “And this paves the way to fetch a small compass on Small Compass the remarkable history of the litigation over the Bra- zeau Reservation, in which counsel such as Ewing, Car- lisle, Cushing, Blair, Krum, Hill, Glover, Shepley, Gam- ble, Geyer, at one time or another, only memories now, appeared at the bar, and the judgments fell from such judges as Catron, Taney, Clifford, Napton, Scott, and Wagner, all gathered to their fathers. When George Washington had yet a lustrum of life left to him, to-wit, in 1794, Don Zenon Trudeau, Spanish Lieutenant Gov- ernor of Upper Louisiana, 'conceded' to Joseph Bra- zeau out of the 'royal domains' a tract of four by twenty arpents on the Mississippi River about two miles from 'the town of St. Louis,' a tract along side the conces- sion and survey of a 'free mulattress'! ... An 'ar- pent' is a land measure varying in dimension from .84 of an acre to 1.04 acres and to 1.28 acres, accordingly as the arpent meant, as an arpent de Paris, an arpent com- mun, or an arpent d'ordonnance. In 1798 this same Joseph Brazeau, by deed conveyed to Louis Lebeaume (spelled in more ways than one) the same concession, reserving therefrom to himself four by four arpents in the southern part 'to be taken at the foot of the hillock.' ... This four by four arpents is the ‘Brazeau Reser- vation,' and hence its name. This Lebeaume dug a drainage ditch, not on the south line of his own arpents, but on the south line of those reserved by Brazeau, a ditch known in judicial records as 'Lebeaume's Ditch.' ... The location of this ditch confused the south out- boundary of his land figures much in the litigation as Earth does a stockade and an earth barn (“Grange de Terre') Barn and the 'Big Mound'-all taking the mind back to a dim and almost forgotten past, a past older than the treaty of Paris, that of San Ildefonso and that of Ma- 106 Wit, Wisdom and Philosophy pents, may have its custom, its trend, its sittlichkeit; but sure it is this Brazeau Reservation was born to trouble as under an evil star, was as prone to trouble as sparks are to fly upward, and has had it in a turbulent career. Its destiny was cast rough. In chimney-corner phrase, it was always in 'hot water.'” Hot Water On the ancient right of Habeas Corpus the court eulo- gizes as follows: “Judges may be likened unto priests attending be- Priests Judges tween the horns of the altar in the Temple of Justice. Temple of Justice So, attending, they stand solemnly charged with keep- ing the lamp of personal liberty in oil, well trimmed and brightly burning. It is so because the liberty of the citizen is an immediate jewel of the law, to be sacredly cherished and hedged about withal. Therefore, no more legal fiction, good for use in matters of less moment, or matters of punctilio, or comity between courts, may shield any one restraining an American citizen of his liberty from having the why and wherefore of that re- straint summarily looked into by any court of compe- tent jurisdiction in the land. The discretion of one judge in remanding the prisoner does not bar the dis- cretion of another in discharging the prisoner on habeas corpus. Wherefore, when the great writ goes down-a writ whose origin is lost in the dawn of English history, whose final and triumphant establishment was a land- mark in the evolution of civil liberty, making the hearts Land of its lovers leap for joy—to the prisoner, the doors of jails open; he comes into court with his shackles dropped and the cause of his imprisonment, the very marrow: of it, is laid bare to the utmost verge and minutiae per- mitted by written law.” "Taking some samples of many, under the maxim, 'ex una disces omnes' the writ of habeas corpus has Dearest ... been fondly termed by eminent persons, who used no of Britons words lightly, the dearest birthright of Britons, 'the Mark 108 Wit, Wisdom and Philosophy Blue Back Spelling Book of record and brief unless counsel plant themselves on the paradoxical excuse of the old Greek orator in like fix, viz.: that he had no time to be brief. We allow our- selves a further preliminary word by way of a bird's- Bird's-Bye View eye view of what has been already determined in other suits on some phases of the general subject-matter of this litigation. “Already the State of Missouri (willy nilly) has been put to expense to publish this matter in our law reports; already the profession of the law (willy nilly) has been put to expense to buy that matter. Therefore, we shall not republish it, but refer the student in case law, prying and curious in that behalf, to those cases for the facts.... Intervening creditors were repre- sented by independent counsel, and under our present Attorney's Lien Act presumably had similar contracts. So that without offense, we may refer to the homely al- legory and sketch in Webster's old blue-back spelling book, and say that the cases may be likened to a com- posite cow, and each attorney drew milk from his own contractual udder. . . . In effect on one phase of the matter, there is a question sprung. We state in our own way, viz.: Who was the Christopher Columbus (or Jason) who, sailing on a dimly charted and vexed sea on a venture of discovery and gain, first sighted land (or the Golden fleece) in the direction of this de- cree? Was he plaintiff's attorney in the Barrie Case or Johnson's in this case? We put to one side an an- swer, and with that answer the invidious task of appor- tioning professional honor or reward where there is enough for all.” “A wise judge once remarked to me that in constru- ing a statute it was a mistake not to read it and keep it before your eyes. What sly phase of dry humor he had Humor in mind in that homely announcement springs so spon- taneously in an alert mind that it needs no help by way 110 Wit, Wisdom and Philosophy Confusion History justice. Justice shall be administered without delay said the Great Charter, and so says our Constitution. Experience-taught, we have reached the settled rule of practice that joining issue on the merits is a waiver of interlocutory rulings on motions and demurrers, except where the petition does not state a cause of action, or there is a lack of jurisdiction of the subject. We should stand by that rule; for we have said so so often that the profession understands our position. If we unsettle the rule, the door is opened wide for confusion to come in; certainly being of the very essence of good law. If the rule inherently and necessarily tended to injustice in the end, it would be different. But it will be found to rarely, if ever, so result.” “This case pending nearly as long as the Greeks be- Checkered sieged Troy, has a checkered and singular history. There were two trials below. Coming here on appeal, it was submitted in division one. That division split in twain, and the case came to banc. Argued and submitted there, it remained either in gremio legis or sub judice for a long season, and was finally set down for another hearing and again argued in banc. At one time or an- other so much has been written on it that the writing fever, the furor scribendi, seems out of place.” “Admitting that words of description may, when reason calls for it, become material, yet, in the condi- tion of things we are dealing with, it is too plain for argument that the motion for new trial by clerical mis- take, reads 'three' instead of 'eight.' It is good doc- trine that a mere clerical mistake is not fatal.... To make such a pen slip on appeal would be to let a mere pin prick of inadvertence hide the very right of Prick the matter, even as the cloud the Hebrew prophet saw, on the rim of the horizon, of the size of a man's hand, spread presently and shut out the sky. That the law regards not trifles is one of its favorite maxims. It is Clerical Mistake Wit, Wisdom and Philosophy 111 written (we construe the writing liberally) that those Gnats who allow themselves to strain at gnats are prone (if they do not look out) to get in the class of those whose powers of degustation may encompass the swallowing of camels. We invoke, for that theory the wise hint of Camels Venerated a venerated document well known to the whole bar of Document Missouri (q. v.). So Horace holds up a red danger signal in his Ars Poetica of some value in dispensing justice through judicial exposition, viz.: Parturiunt montes, nascetur ridiculous mus. We rule the point against respondent. ... Now, no system of the laws could for one minute command a whit of respect that would add to the delays of the law (five years in this case) the intolerable burden of reversing judgments on every error whatsoever. On this head I may be al- lowed to illustrate by an edict of the second Emperor of the last Chinese ruling dynasty to point a moral. Pan Heu Lo, in a study of Chinese Jurisprudence (Vol. 8, 111 Law Rev. p. 533), vouches for such edict, viz. : 'The Emperor considering the immense population of the Empire, and the great division of the territorial property and the notoriously law-loving character of the Chinese, is of the opinion that law suits would tend to increase to a frightful amount if the people were not afraid of the tribunals, and if they felt confident of al- ways finding in them ready and perfect justice. A man Justice is apt to delude himself concerning his own interests. Contests would then be interminable, and the half of the Empire would not suffice to settle the law suits of the other half. I desire, therefore, that those who have re- course to the tribunals should be treated without any pity, and in such manner that they should be disgusted with the law, and tremble to appear before the magis- trates. In this manner the evil will be cut up by the roots. The good subjects who have difficulties among themselves, will settle them like brothers by referring . Wit, Wisdom and Philosophy 113 Temper of Witnesses puted off-hand transactions of certain sections of said by-laws on the other, and the record shows he was, for good reasons, too, not satisfied with the transactions. ... Counsel appearing here for appellant is not the same trying this case below. It follows, we think, that he is no better situated to judge of the admissions and theory upon which the case was tried below than is this court, because both the court and the learned counsel must go to the same cold, dry, and in this instance, somewhat nebulous, record for information." “All persons familiar with trials must know that it is utterly impossible to bring before this court upon paper a real representation of a trial as it took place. The manner, the temper, the character of witnesses, as known by the jury, cannot be spread upon paper; and the words of a witness, in whose testimony neither the jury nor the court had the slightest confidence, will read as well and appear entitled to the same confidence, when written upon the record, as would the language of the most impartial, upright witness in the world. ... Happily, by the aid of a jury's discretion to start with, tempered and controlled by the discretion of the trial judge, and afterwards supervised by the discretion of the appellate courts, wrongs may be ultimately righted, so far as may be in the affairs of men. The bitter no- tion of Lord Camden relating to judicial discretion, to- wit: "The discretion of a judge is the Law of Tyrants. Law of It is always unknown. It is different in different men. Tyrants It is casual, and depends upon constitution, temper, pas- sion. In its best, it is oftentimes caprice; in the worst, it is vice, folly, and passion to which human nature is liable.'-is not the modern view, if applied to judicial discretion in supervising verdicts. The modern view is that by the discretion of the jury, plus the discretion of the trial judge, plus the discretion of the appellate court, the 'golden mean' referred to by Horace and Wit, Wisdom and Philosophy 115 Mote in Eye ter emotion that at least a mote of prejudice may be assumed as in his eye.” EQUITY “The beautiful character of pervading excellency, if one may say so of equity jurisprudence, is that it varies its adjustments and proportions so as to meet the very form and pressure of each particular case in all its com- plex habitudes.” “The leaven of that illegal excess, carried into the note, leavened the whole lump of the deed of trust. That instrument had no legal right to existence and did not bind the lot purchaser. As figs do not grow on thorns or sweet water flow from a bitter fountain in nature, so in equity a superstructure of legality cannot be built on a substratum of illegality. The eye of equity cannot see her without seeing him. It must look through Equitable him to see her at all. The equitable yardstick, then, Yardstick that measures his rights measures hers, and she may not without full notice, as here, hold a gift fetched to her by a soiled hand. If Roe notify his neighbor Doe that he is about to visit or has visited Doe's hen-roost to wrongfully appropriate his hens, must Doe protest at once or lose his right to pick a bone with Roe in Pick a Bono court?” "'Equity does nothing grudgingly or by halves. Its outstretched arm corrects, but with loving kindness, withal.'" “It is put beyond cavil that Mrs. P. had long as- sumed such fiduciary relation toward Rachel, a relation accentuated by her extreme old age, her physical in- firmities, her childishness (and, it may be, by her train- ing as a slave to look up to a mistress), that the burden was upon defendant, who holds title only through the instrumentality of his wife, to show that the contract was just and fair. That burden he did not well carry. Aen-Roost 116 Wit, Wisdom and Philosophy Equity Broods That such burden attends such relation is a wise doc- trine as old as equity itself. Without it a court of con- science would be powerless to prevent confidential rela- tions from being abused. Equity does not beguile itself by Utopian dreams in that behalf. It travels on the theory that where there is domination and confidence there is danger of misuses of them. It is not necessary to cite authority to that proposition nor to the other that, where the weak, the illiterate, the confiding, the credulous are opposed in a challenged contract to the strong, the educated, the reliant, the shrewd, equity broods over the transaction with anxiety and watches it with vigilant and jealous eye to see that no uncon- scionable advantage is taken intentionally or results without intention. As nonage has its shields, so has dotage." “There is another danger (one not to be ignored in equity), viz. : that advantage may be taken of the ignor- ant, the confiding and helpless by those who promise, reap performance, and then procrastinate, dally, and die without living up to the great commandment of the law, to-wit: To do just and right, and to render to. every one his due.” “The rule is that appellate courts approach the facts in an equity case by allowing to the trial chancellor (in this case his referee) the primary advantage of a per- sonal factor or equation, viz. : the actual use of eye and ear in discerning the truth of witnesses (eye and ear filling the prime office in that regard), and in stamping Stamping testimony with its earned and deserved percentage of Testimony weight and credit. The upper may well defer to the lower court in that particular. Subject to that modifica- tion, an equity case is heard de novo on appeal. There- fore, if it cannot be heard de novo in all that term im- plies—i. e., in very deed and truth-it should not be heard at all on appeal. Peradventure, to do nothing Procrasti- nate Wit, Wisdom and Philosophy 117 Clock is wiser than to do something and not have the infor- mation, the wherewithal to do right. A clock that stands still is right at least twice a day. A clock that but runs lamely may never tell the truth.” “In short, it may be said that those fine rules of per- sonal honor obtaining between man and man, requiring one man to keep his word with another, but accord with Justinian's golden idea of equity, viz.: that every man should render to another his due.”. The following is an action in equity to require an agent to convey property purchased for his principal: “No one can read the above letters without con- cluding that the contention of respondent that he was acquiring title to this strip as an individual matter is After- an after-thought born of emergency; for it is substan. "thought tially agreed on all hands the purchaser alluded to in these letters was appellant, and no other. The record further discloses that the only explanation offered by respondent of the admission in his letters is that such statements were mere allowable stratagems or 'ruses de guerre,' makeweights or coloring matter, to pro- cure a conveyance, and had no reference to an ex- isting fact. In other words, we are asked to construe respondent's letters as dishonest, and this in his own interest, we decline to do. ... Furthermore, equity, as a code of conscience, takes cognizance of more deli- cate distinctions between right and wrong in human conduct, and enforces a subtler morality than the traditional practice and procedure of courts of law have been considered capable of adjusting and ad- ministering. Hence in equity many acts are dealt with effectively as fraudulent, although they would admit of no remedy at law." “The new situation created by R. caused him and B. to be unequally yoked together, practically with no Yoked existing aggregatio mentium; and equity, which is a Make- weights 118 Wit. Wisdom and Philosophy bounden handmaiden of honor and morality, should delight in cutting in twain all their contractual bonds." ummery Lukewarm USELESS LITIGATION, LIS PENDENS, JUDGMENT “That from a to izzard the suit was mummery, nothing, 'monstrous usurpation,' the decree void, ev- ery step leading up to it illegal, and hence the deed itself void as a crowning act of a series of invalidi- ties. Plaintiff may not blow hot and blow cold on the vital question of jurisdiction and have his claim allowed (as here), and in the next assert lis pendens which assumes jurisdiction as a postulate. He may not even be lukewarm (Rev. 3:15, 16). If the circuit court was without jurisdiction, ab initio, as plaintiff must and does claim, then, where was the lis pendens in the circuit court. It is trifling with terms, it seems to us, and putting the matter into a mere limbo of confusion, to speak of lis pendens in connection with a litigation in a court without jurisdiction of the subject-matter, ergo without authority to enter any decree or grant relief. 'Lis pendens' means a suit, a controversy in court. It involves the essential and primary concept of jurisdiction of the subject-matter of the litigation and of the parties. Hence jurisdic- tion to enter a decree or make a finding involving the subject-matter and parties is indispensable to lis pendens. We are not dealing with the statute, for the record does not show a record of a notice of lis pendens; but we are dealing with the general law. ... If, then, no judgment be possible because the court is without power to render any, it is nonsense Nonsense (or, to use a phrase of the ancients, it is milking a he-goat into a sieve of double absurdity) to stress lis pendens, a mere incident to a judgment, when a judg- ment was impossible.” 120 Wit, Wisdom and Philosophy Solid Ground the beauty and evenhanded symmetry of the law (the law being no respecter of persons) is made manifest, and all litigants at one time or another are allowed to contribute somewhat to this symmetry in order that not one jot or tittle of the law pass away till all be fulfilled by common contribution.” “When, the ground on which a new judgment is to rest is new and unexplored, as here, it is well enough for courts to sound at every step and look to the past as well as the future to get the right point of view and to see if, peradventure, the ground is solid; but, after that has been said, and everything else has been said that can well be said on the wisdom of judicial caution and circumspection where the situa- tion is new, it should be allowed as good and accept- able doctrine that courts should not adhere to theo- Fond and ries, however fond and familiar, when the lawmaker (within constitutional limitations) has exploded them by a new statute. Indeed, in that behalf it is much the same as a philosopher has said of custom: "'A forward retention of custom is as turbulent a thing as an innovation; and they that reverence too much old times are but a scorn to the new.'-Bacon On Innovations. “It is a lovely poetical concept and likewise a com- fortable and wholesome judicial concept that: “ The thoughts of men are widen'd with the process of the suns.'” niliar FRAUD AGAINST THE DEAD “Running like a marking thread through the several briefs of appellant is a heavy charge of fraud-fraud against the dead in their graves. At places it is boldly made; at others by innuendo and in an undertone as if to hoot away the reputation of those who cannot an- Hoot Away Wit, Wisdom and Philosophy 121 . Book And So On swer—fraud in the administration of the partnership assets by Murdoch, surviving partner; fraud and covin in that his sureties, Bates and Eads, aided or acquiesced in that administration; fraud in Murdoch's assignment to Priest; fraud and covin in Bates and Eads taking no steps in the probate court to have an administrator ap- pointed in lieu of Murdoch, removed, so that his bonds- men could be brought to book; fraud in bringing the Brought partition suit; fraud and covin in the conduct of that suit by the attorneys on both sides; fraud and covin in the parties defendant in that suit not answering or con- senting to a decree whereby the land was sold instead of partitioned in kind; fraud in the circuit court's as- sumption of jurisdiction, and so on, and so on. The story is long and details unimportant in the view we presently take of the question. ... If those cred- itors be dead, then during life, when under a call to speak and act they murmured not and took no steps to Murmured surcharge Murdoch's accounts, or to put themselves in a position to sue on his bond. They did not, so far as this record discloses, pursue the individual estates, but, as to fraud, remained mute and rested satisfied. Look at it. Murdoch is dead. Eads is dead. Harrison is dead. Verily while the dead tell us no tales, neither can the dead de- fend themselves against tales. ... So, if in the pur- suit of fraud, two judicial views are open on the facts, one in favor of honesty, the other contra, the law (an invention of men for their welfare) but agrees with human nature in saying we must take the nobler view. So, the maxim is: In cases of doubt, the more generous and more benign presumptions are preferred. (Noiliores et benignores, etc.) The rule of the fireside, quoted above, finds its beautiful prototype or supplement in equity when the fraud is charged against the dead and a pronounced lapse of time has intervened. The facts in this case in no small tones call out for the application Not Remained Mute 122 Wit, Wisdom and Philosophy Wit of Man of the doctrine of laches against plaintiff's claim, un- less, indeed, there be an insurmountable obstacle in the way (an insistence by plaintiff we will consider pre- sently) for the wit of man could not invent a more typical case of neglect—a case in which the omission to move for many years has caused vast changes to be made in the betterment of the property and in the rise of values, a case in which it would cause a just man in- stinctively to cry out against holding that defendants, who in good faith invested great sums to improve the property, should now lose part of it on this newly Stale sprung, newly asserted stale claim. It seems to us that Claim the fact that a just man would cry out instinctively against it is none the less apparent when it is seen that those persons behind the public administrator (who- ever they may be) would thereby reap where they have not sown and gather where they have not strewed; for, observe, it is only by death of creditors and death of their claims that the Dickson heirs reap aught of a harvest. The creditors of a partnership have the pri- mary right to have their claims against the partnership paid out of the partnership assets. If time be reckoned from the removal of Murdoch as administrator up to the appointment of the predecessor of Troll, 22 years went by; if time be reckoned up to the institution of this suit, 30 years went by—While these creditors stood idly by with shut eyes and hands on their mouths until they saw a city built on the land they claim was devoted to the payment of their claims. If the claims of creditors, whether in the form of allowances in the probate court or elsewhere, have long since perished by the flux of time, as we believe to be the fact, and if this valuable property is now to drop like a ripe plum from a judi- cially shaken plum tree into the lap of Dickson's heirs Tree because those primary claims (with those, who owned them) have perished, whereby death brings a windfall Flux of Time Plum Wit, Wisdom and Philosophy 123 to them, then the doctrine of laches applies to those beneficiaries too; for what the creditors saw, they saw, what the creditors did, they did. It was six of one and half dozen of the other. The record shows they have been sui juris for a fourth of a century or more. No conceivable reasonable excuse can be given why they did not move with diligence and vigilance. Observe the theory now advanced by plaintiff's counsel is that the circuit court was without jurisdiction of the assign- ment and partition; hence Harrison's deed was void. If that be so, what obstacle was in the way of creditors moving at once, or the heirs moving sooner? Equity, it has been said, above all things, desires the wronged to have restitution; but it also abhors sloth and favors diligence. A court of conscience does not sit to correct the evils of negligence. When it confronts laches equity remains passive. The maxim is: Gross neglect is equivalent to fraud. Magna sulpa dolus est. We leave the matter with a question: Should equity, which is a Great synonym for natural right and justice, whose golden Command- rule and great commandment is to do to others as we ment desire them to do to us (as Justinian puts it, Inst. 1, 1. 3: “to live honestly, to harm nobody, to render to every man his due') refuse to apply the doctrine of laches to plaintiff's ancient claim? We trow not, un- less to do so contravenes some stubborn and controlling principle of law yet to be reckoned with.” CENTER OF POPULATION “Speaking of shifts in populations, the census tells the same story history has always told, viz., that popu- lations wax and wane, stand or shift, as different causes operate to produce different effects. The schoolboy reads that story in his Herodotus and in many a page since. Khayyam The old materialistic poet, Khayyam, mockingly toying Moral Phenom- with the moral phenomena of human life, had it in ena mind in the quarter of lines of his Rubaiyat: 124 Wit, Wisdom and Philosophy ‘They say the Lion and the Lizard keep The courts where Jamshyd gloried and drank deep; And Bahram, that great Hunter—the Wild Ass Stamps o’er his Head, but cannot break his Sleep.' “It is not within the pale of sober speculation, for did not the noble Whig historian, reviewing Ranke's His- tory of the Popes, see in his mind's eye ‘some traveler from New Zealand, in the midst of solitude, take his stand on a broken arch of London Bridge to sketch the ruins of St. Paul's?' Even in Missouri, we are pointed by relator's counsel to the departed glories of our own Weston, once the Mecca and metropolis of Northwest Missouri.' And does the student of our annals need to be reminded of (old) Franklin on 'Cooper's Bottom,' its early pre-eminence in the Boone's Lick Country, its bounding hopes, its trade sketch away to Santa Fe, its Santa Fe lottery, pouring venal wealth into its lap, its gay life, Venal its nearby Hardeman's Garden—a dream of flowers, Wealth fruits and labyrinths of pleasant walks—one and all faded like the fog before a morning sun, and now noth- Dim Romi ing but dim reminiscence, amusing the idle moments of niscence a prying scholar like Walter Williams? And what of Sparta in Buchanan County-once a rival of the town of Joseph Robidoux? Sic transit gloria mundi! We are not prepared to rule that lawmakers, presumably wise men, in using population as a standard of classifi- cation, do not look before and behind, and may not as- sume that populations may not both wane and wax. Hence we decline to follow the lead of that phase of re- spondent's argument. Once in, always in, is a dogma we do not subscribe to as an invariable rule in legal hermeneutics in cases like the one at bar." EVIDENCE-ADMISSIBILITY-METAPHYSICS “To determine the admissibility of evidence by subtle Wit, Wisdom and Philosophy 125 distinctions and refinements, lurking in the convenient shade of psychology and metaphysics, is an experiment Shade of of questionable value in the everyday administration of Psychology the laws of a practical people. Too much metaphysics is bad for legal exposition. ... There is danger there and courts should sound at every step to see that they are on solid ground. On the theory of the rhyming adage, ‘A little ..., a very little, nonsense now and then, etc.,' I recall the factitious and rather sly defini- tion of 'mind' and 'matter' laid at the door of a cele- brated metaphysician, viz.: What is mind? No mat- ter. What is matter? Never mind. It serves to some- what ear-mark the elusiveness and obscurity inherent in the subject. So much by way of warning. In the next place (and closer home) opinion evidence on speed Opinion is precisely of the same quality as opinion evidence on Evidence, ti Speed time, quantity, number, dimensions, height, distance, or the like ... and is admitted as evidence for the same reasons, viz., because, from the nature of the sub- ject under investigation, no better evidence can be ob- tained, or the facts cannot be otherwise presented to the tribunal. Finally (and still closer to the point) opinion evidence gathers efficacy and wisdom by reference to the phenomena of everyday experience and observation. The sources of judgment on the admissibility of such evidence are therefore to be looked for in the homely Everyday illustrations of everyday life. Let us take some hypo- Lite thetical cases of that sort by way of illustration. John is asked to give the height of his favorite tree in his father's dooryard. Now, he has not seen the tree in many a day. He had never, that he remembered, formed an opinion of its height in his boyhood, or since. In fact, had never been asked the question before, or thought about its height in feet and inches. Is his es- timation or opinion on the height of the tree of no value? Apply that same illustration to quantity or 128 Wit, Wisdom and Philosophy hla n “(Nota bene, by way of side-step): There are those who say that poetry has no place at all in jurisprudence or legal exposition. Quod hoc, it may be said: The French have a saw: “He who excuses himself accuses himself'! Not caring to fall foul to that adage, we enter no excuse, but point to the venerable dictum of the mentor and master, Sir Edward Coke: “The opinion of philosophers, physicians, and poets are to be received and alleged in causes.'” PATRIOTIC Glow, PATRIOTISM, LITERATURE, CRITICISM “It is argued this is an attempt to rob' appellants under forms of lawma grievous charge. So, in motions filed, there is a suggestion (somewhat faintly echoed later in the briefs) of hostility to a certain patriotic glow of fervor of respondent's counsel in presenting their side of the case. In that line we are warned at one place that 'the last refuge of oppression is patriot- ism’; this as a deterrent, we suppose, against this court's being carried away by the sweeping influence of pa- triotism. As to that we submit these observations: It was Dr. Johnson (was it not?) who said 'the last refuge of a scoundrel is patriotism.' But that viewpoint is of no (or little) use in administering law through judicial tribunals, a part and parcel of a patriotic government. (Note, by way of a side-step): "The great champion of literature,' said Doctor, as well known, had violent and fanciful prejudices much in amusing evidence even in his dictionary, a kind of book in which the topic changes so rapid and frequent that scholarly calmness is a sine qua non. (Witness his definitions of 'pension,' 'pa- triot,' 'oats,' 'patron,' 'Whig,' 'Tory,' 'lexicographer,' ‘Methodist,’ ‘Presbyterian,' 'poetess,' 'Puritan,' q. v.) It is not the duty of courts to approach legislative plans Cold and for public works, promoting public welfare with a cold Hostile Counte and hostile countenance as if determined to drive a nance Influence of Patri. otism Wit, Wisdom and Philosophy 129 Scales ven coach and six through them or make them perish by overnice analysis in criticism. On one side, to be reckoned with, stands the axiom of Jeremy Bentham, to- wit, “The greatest happiness of the greatest number is the foundation of morals and legislation. On the other hand stands the legal maxim in a dead language, to- wit, Inde datae leges fortior posset, which (a scholar assures me) means: Laws are made lest the stronger party should possess all; i. e., for protection of the weak, the individual. Peradventure it is by recognizing both great and small, public right and private right, and holding the scales even between the two that courts by approximation get at just and practical results in suits between the public and individuals. In performing that high and delicate function, courts should sound at every step to see if the ground is solid, and they are not usurp- ing the province of the lawmaker in making a judicial out of a legislative question. . . . Must an officer about to receive his commission or a broker about to buy a municipal bond look to see whether the election officers were paid or whether means were appropriated there- Virgin for? We fear the point is a virgin one, and, if allowed, would spread confusion in unexpected ways. We hope it is treating assignment with becoming judicial gravity and decorum to apply to it a phrase, used by no less an authority than Sir John Fortescue in a learned work 400 years old in commendation of the laws of England, viz., Moche Cyre and no Wull, put by the German peasant into the fireside colloquialism : Viel Gerschel und wenig Wolle. It is disallowed for lack of substance. . , . In the second place, we held in the former case, in effect, that the city would not take such precedent steps until there was official action, a legislative step, evidencing a municipal plan, intent, and ability in prae- senti to build the viaduct. Otherwise (benefits lying at the root of the power invoked against the property own- 130 Wit, Wisdom and Philosophy of stones er) the benefits assessed would be conjectural and spec- ulative; i. e., the property owner damaged could well Moonshine say: You offset my actual damages with the moonshine of imaginary benefits from an imaginary viaduct. You Imaginary Benefits take a ducat from my pocket and pay me back in chips and whetstones, thereby despoiling me in the name of Whet- the law, doing like the unjust man I remember to have read of, viz. : ‘With one hand he put A penny in the urn of poverty, And with the other took a shilling out.'” In a case with reference to election laws and "a friend of the court,” (Amicus Curiae) : “A deservedly obscure rhymster, whose verses will be remembered when Virgil is forgotten—and not till then—in a homely touch or so, in the role of amicus curiae maybe, outlined the appealing situation in that case to this court in this way: Legal Thicket ‘Are your honors of a mind now That we all be left behind now? That we all can have no ticket, Have been caught in legal thicket, And are lost in legal brambles, While the train we want to go on, Rolls out straight for Armageddon ?' “The curious may consult with more or less profit, Rev. xvi, 16 and 2 Chron. xxxv, 22, on Armageddon and its related term, Megiddo, where a dim war once raged, used as a prototype in oratory in the year 1912.... It is obvious that any election law permitting officials, either by design or inadvertence, to print irregular offi- cial ballots and foist them on the voters, and thereby disfranchise them by wholesale without their own fault, nolens volens, would be a harsh and indefensible stat- 132 Wit, W is dom and Philosophy Cuts No Figure voters so authorized would be disfranchised. We may not thus ‘palter in a double sense,' or judicially put such a cup of Tantalus to a voter's lips. Stare Decisis." On the subjects of homestead, abandonment and fraud in one case the following opinion is interesting. “There is some language ... to the effect that the intention to return cuts no figure, in abandonment. It is there said that it is 'a visible occupancy of the premises as the head of the family at the time of the levy of the writ which fixes the homestead rights of the defendant. ... There is no other way in which it can be made to appear beyond cavil, question, or the possibility of fraud on creditors than by actual, visible occupancy.' Besides being unnecessary to the case in judgment, that language is unhandsomely and unhap- pily narrow and sour as a rule of homestead law. Strictly speaking, by the letter of that pronouncement, the head of a family would lose his homestead if at the instant of an execution or attachment levy he was absent over night, or had gone on a visit, or was absent under any stress without a particle of intention to stay away or abandon his homestead, contra with an abiding animus Hang revertendi strong upon him. If that were the law, a Dangling homestead right would hang dangling on a weak and slender thread, indeed. To those the law holds unpro- fessed tender regard, to-wit, the homeless ones who are encouraged to get homes and keep them, it would be a Barmecide feast elaborately spread with ostentation, but with nothing to it worth while. It would be a reproach to the law. That dictum, taken literally and standing alone, is opposed to the whole philosophy, and the har- monious trend to the doctrines of the cases cited supra, and is in the very face of a cardinal rule steadily ap- plied in construing homestead exemptions, to-wit, that from the highest reasons of public policy and social jus- tice homestead laws are favored by courts, and are al- Barmecide Feast 134 Wit, Wisdom and Philosophy “Since it is true that as the furnace proveth the pot- ter's vessels, so the trial of a judge is his reasoning (see Eccles. xxvii: 5, for the idea), under the head of reason, let us look a little deeper and to another phase of the matter, to-wit, the raison d'etre of the homestead acts. What is their underlying motive? Solicitude for cred- Solicitude of itors ? As a way and means for debt collecting? Does Creditors a creditor give credit to a householder on the faith of his homestead? Certainly not. It will be time enough, then, for this court to be astute to provide ways and means for a creditor to collect his debt from a home- stead tract when the lawmaker has first evinced such purpose in his homestead laws—and not before. Those laws face the other way emphatically. They of set pur- pose show no solicitude for creditors. It was so from the beginning; for, as already pointed out, our second homestead law vested a fee in the widow, except as to debts of a specified and limited character. That lan- cut the creditor off without his traditional shilling, ex- cept he fall in a certain class." Defendants were charged with the violations of cer- tain ordinances governing the sale of milk in the city of St. Louis and the following is from one of the opin- ions in regard thereto: “The criticism is that the mixture of water with skim milk must be ‘so as to lower and depreciate its strength and quality. The idea advanced seems to be that the complaint is deficient in not setting forth some fixed standard by which to judge 'strength and quality.' Otherwise (so the argument runs), the standard might be an ideal one in the chemist's mind, or one prescribed by the ordinance, or the condition of the milk prior to the addition of the water might be the standard; hence the complaint should throw light thereon, so defendant might know by which measuring rod or standard his Measuring Rod Wit, Wisdom and Philosophy 135 Alchemy of Nature act is to be measured or judged; that course would pro- vide a check to the testimony of the chemist. But we shall assume that science can detect the addition of water to milk, whether the dairymen's cows gave poor milk or rich milk, regardless, too, of any mere ideal standard in the chemist's mind, or of any ordinance standard. It is nothing to the point to say there is a large percentage of water in milk as it comes from the cow. That particular water has been so treated by the subtle and mysterious alchemy of nature that presumably it holds in solution such delicately adjusted and blended proportions of fatty and non-fatty solids as to make normal cow's milk (wholesome to all) a necessity to the young. Milk, an object of profound and vigilant con- cern to the modern lawmaker, has been always part and parcel of the daily life, the adages, and folklore, of man- kind. For example: We are told not to cry over spilt milk; that is, not to fret over real loss that can't be helped. The Russian has an adage: That which is taken in with the milk only goes out with the soul; that is, early impressions last till death. The Swede has one denoting hospitality, viz., when there is milk in the can for one, there is milk in the can for two. In the phrase, 'the milk of human kindness,' is expressed the very heart and office of that gentle but noble virtue. The bard of bards does not hesitate to connect milk and Milk and philosophy. Deeming that neither loses dignity by the hus the Philosophy juxtaposition, he speaks of 'adversity's sweet milk, philosophy. All such amiable metaphors, saws, simi- les, associated ideas, and folklore eschew the belittling idea of water in milk, contra, the milk held in mind is good milk. I recall but one instance to the contrary (seemingly the inadvertence of a daring and erratic genius) viz. : 138 Wit, Wisdom and Philosophy Stinging Whip ministering an antidote to the poison already injected in the case, to see if peradventure he may not be able to render it innocuous. ... The lodgment of this tes- timony in this case, as happily suggested by appellant's counsel, placed a stinging whip in the hands of respon- dent with which to lash appellant at every turn through- out the trial, for with what good grace could appellant insist that the sidewalk was in good condition, when the court had admitted evidence of subsequent repairs and re- construction, based on the theory that by such repairs and such reconstruction the city had admitted the defects in the walk, which admission it now sought to whittle away by contending they did not exist ?” “It has become a trite commonplace of the rules of appellant procedure that a general objection, in a case where evidence is competent for any purpose, may not be laid in the record below (to use a homely simile) as an egg to hatch later in the appellate court into pre- cise and definite objections objections the point to which was concealed from the trial court and from op- posing counsel, and first came out of ambush and into sunlight in the brief in this court. ... The reason why it is not a proper hypothetical question is in no- wise pointed out in the objection. The objection might have had in mind that it was not proper, because it was immaterial, irrelevant, or incompetent, or for any other of a series of guessed-at reasons. How could the Reasons court tell, though he possessed the astounding wisdom of King Solomon himself, the mere view of which, inter alia, took from the Queen of Sheba all her 'spirit' (2 Chron. ix, 3, 4, q. v.), what precise objection the learned counsel had in mind? It has not been hitherto allowed to a nisi puris judge-a puisne judge—to have been so successful in: Ambush and Sunlight 209 Wit, Wisdom and Philosophy 141 quiver, at a definite mark; this for the edification of the court. When he declined to do so, was not that declina- tion tantamount to notice that he preferred his exact po- sition to remain dark for trial purposes? If not that, did it not mean that at that time he had no specific objection in mind, but was casting an anchor to windward for tac- Anchor to tical purposes further on in the case, should a specific ob- jection spring up in his mind later on being more fully advised? The rule is to disallow a general objection to testimony below, where, on appeal, the general objection has been dropped and a specific objection substituted.” Windward Head- master STATUTORY CONSTRUCTION, AND THE PRACTICAL MEAN- ING OF STATUTES REVIEWED BY APPELLATE COURT “In statutory construction, to stick in the letter is to stick in the bark. To stick in the dry letter is but to pay tithe of mint and anise and cummin, omitting the weightier matters of the law.” “Our own statute on construction requires that 'words and phrases shall be taken in their plain or ordi- nary and usual sense.' With that rule in mind let us illustrate: If a rule were bulletined on a given Tues- day by the headmaster in charge in teaching a Gram- mar school, as follows: “No pupil shall be whipped twice for a mistake which shall have been made in par- sing'—would any boy in school take the rule to apply only to future mistakes in parsing? Could he well not plead the rule (with high hope of its allowance) if his mistake and one flogging occurred on Monday prior Flogs and another flogging was threatened on Wednesday sub- sequent to the rule for the same mistake? Or if C, a plantation owner, is building barns, and writes his overseer, 'Paint all barns red that shall have been com- menced,' would B, his overseer, take that command to mean that only barns commenced after the order should be painted red? Nay, if a very stickler for grammat- ical precision-a John Horne Tooke, a Lindley Murry, 144 Wit, Wisdom and Philosophy Ghostly Matters not inquire to know.' But that pronouncement is too broad as a rule regulating judicial discourse. Indeed, getting unanimity of opinion in questions of religious faith in the decision of cases has not been so easy as to invite a wide play of unnecessary exposition in ghostly matters." “If, however, the provisions of a statute are mutually interdependent (as, for instance, where, by applying the doctrine of reddendo singula singulis, it plainly ap- pears they are inseparably welded together) and are so connected that the one serves in the relation of a condi- tion, consideration, inducement, or compensation for the other, or for each other, so that it cannot be said but what the lawmaker intended them to be taken jointly as a whole, and that if one provision could not be put in force the remainder of the law would not have been passed as an independent enactment, then, if one part be bad, the other is bad, and the leaven of un- constitutionality permeates the whole mass.” “While a strained construction of the language of an instrument is not a sensible device for administering u justice, neither is a loose or illogical construction. As Construc- put by Professor Gray: 'A loose vocabulary is the fruitful mother of evils,' and, we may add, that a loose construction of loose language is the nursing father of many more." tion Moot CỌURT, PROFITLESS LITIGATION, MULTIPLICITY OF SUITS, VERITY OF JUDGMENT, AND THE COURT's COMMENT ON ITS OWN DECISIONS “If victory and defeat be equivalent, why litigate? “'But what good came of it at last? Quoth little Peterkin. Why that I cannot tell, said he, But 'twas a famous victory.' Wit, Wisdom and Philosophy 147 Dehors the Record pretation, rules of construction, rules of evidence, and many other working theories of the law are the exclu- sive work of courts. Are they worse off for that? The very common law: itself is a mere ‘system of unwritten law, not evidenced by statutes, but by tradition and the opinions and judgments of the sages of the law.' ... There is nothing, then, revolutionary or singular, let alone reprehensible, in the proposition that courts have worked out, as a sensible instrumentality in administer- ing justice, a motion in the nature of a writ of error coram nobis, entirely without aid of the lawmaker, or that they have recourse to the common law for the bases of prototypes for modern motions. In the broad con- struction the object of that motion is, after the term, to bring before the court some fact dehors the record which, if the court had known it, would not have ren- dered the judgment. Usually such fact is coverture, or insanity, or infancy absent a guardian ad litem, or the appearance of an attorney without authority, or the rendition of a judgment after death of a party without a revivor, or the sentencing of a defendant under age to the penitentiary, or the sentencing of a slave to the penitentiary for larceny." “Affirmance is affirmance-once affirmed, always af- firmed, unless disaffirmance be allowed on timely appli- cation at the same term. Here such application was made and overruled. We must not be understood as holding that the abstract power of this court to over- turn its own decision (the natural human right to Right change one's mind) on a new appeal in the same case does not exist. Such ultimate power exists and has been used and must be preserved unimpaired; but the rare circumstances under which it is used involve the exercise of a high and discriminating power, and such circumstances do not exist in this case. Thus saith the wise ones: Iuman Change Mind 148 Wit, Wisdom and Philosophy " 'It is excellent To have a giant's strength; but it is tyrannous To use it like a giant.'”. Wise and Fine “Referring to the need of judicial astuteness in Judicial Astuteness searching out the very marrow of a transaction to get at the true intent of the parties to a contract, Lord Hobart . . . says: “And Ecclesiasticus . . .' speaks of this elegantly, thus: “There is a subtlety that is fine, but it is unrighteous and there is that which wresteth the open and manifest law; yet there is also that which is wise and judgeth righteously.' Thereupon he com- ments shrewdly and quaintly, as follows: 'So he makes three degrees : Some impudent to give false judgment grossly; and others as wicked, yet do it more cunningly under pretense of strains of law. But a man may be wise and fine to do justice as any others to fraud; and so I commend the judge that seems fine and ingenious, so it tend to right and equity, ... and I condemn them that either go out of pleasure to show a subtle wit, will destroy, or out of incuriousness or negligence will not labor to support, the act of the party by the art or act of the law.' And again . . . the same great judge says: “And here, first, I do exceedingly commend the judges that are curious and almost subtle (astuti, which Proverbs is the word used in the Proverbs of Solomon in good of sense, when it is to a good end) to invent reasons and means to make acts according to the first intentment of the parties, and to avoid wrong and injury, which by the rigid rules might be wrought out of the act.'”. "Miserable indeed would be our property conditions if we left the simple and safe rules of the common law to run after a will-o'-the-wisp of speculative refinements said by counsel to spring from comity. All our titles would be drawn within the hazard of such new doc- trine; and fortunately, even comity calls for no ruling omon Wit, Wisdom and Philosophy 149 Venerable Doctrine having such mischief hid in its bowels. Again, we will not so write the law as to discriminate against our own citizens. 'Justice must not be sacrificed to courtesy.' ... In dealing with non-residents, they must be con- tent with the constitutional safeguards of equality be- fore our law-a benign and venerable doctrine, well vouched for: 'Ye shall have one manner of law, as well for the stranger, as for one of your own country.' Lev. xxiv, 22.” Demarca- “There is a pronounced line of demarcation between tion what is said in the opinion and what is decided by it-- between arguments, illustrations, and references to one side, and the judgment rendered on the other. The language used by a judge in his opinion is to be inter- preted in the light of the facts and issues held in judg- ment in the concrete case precisely as in every other human document. Let us point a homely case to illus- trate. Once upon a time there was kept, screwed against an end of each car on a certain railroad, a sealed cabi- net or case, with a glass front. In that case were con- spicuously displayed an ax, a hammer, and a saw. The glass bore the legend in bold letters: 'In case of acci- dent break the glass.' Suppose John, a passenger, acci- dently stubbed his toe in a hole in the aisle carpet of that car and hurt himself, would he have leave and license to smash that glass on the invitation extended by the general language of that legend? Would not the accident giving that right connect itself with the necessary need and use of a hammer, a saw, or an ax? It would be a wide and very mischievous departure from the correct canons of interpretation to discon- nect general language from the issues and facts of a given case and to apply that general language mechan- ically or automactically to the different facts and dif- ferent issues of another case; for the sense must be lim- ited accordingly as the subject requires and the words Stubbed His Toe Correct Canons 150 Wit, Wisdom and Philosophy take color from their context. ... The connection and train of the discourse, is another source of inter- pretation. We ought to consider the discourse together, and in order perfectly to conceive of the sense of it, and to give to each expression not so much signification as it may receive in itself alone, as that it ought to have from the thread and spirit of the discourse. “With the proviso out of the way, is there left only an incomplete enactment, one not symmetrically rounded out, and therefore incapable of inforcement? Rounded Out If those questions must be judicially answered, yes, then the whole act falls to the ground with the proviso, if no, then the law, bad in part, may be good in part; for the courts in this belief do not apply the ideas shadowed forth in the metaphors of Paul and Solomon where the one speaks of a little leaven that leaveneth the whole lump, and the other comments on the all- pervading and unsavory effect of dead flies in the apothecary's ointment. ... I have had occasion to use before in another form, a judge is not to be like a tyrant, making all void when part is void, but like a nursing father, making void only that part where the fault is and preserving the rest if he can." “It was taken in ancient times, so a scholarly brother Limbo of tells me, as within a limbo of unreason to do so useless Unreason a thing as to carry owls to Athens. To offer instruc- tions in a cause in chancery is like carrying owls to Athens; coals to Newcastle, herring to Holland, or gild refined gold. The unbending rule of practice is that instructions fill no office at all in an equity case; hence, for appellate purposes, error cannot be predicated or assigned upon the giving or refusing of them. In chan- cery the question is not what the chancellor instructed himself to do, or how he talked the matter over with himself; the question is: Did he seek equity and do it? We have always so written the law, and doubtless Nursing Father Owls to Athens 154 Wit, Wisdom and Philosophy the defendant have the stock in possession ? No; ergo there is no 'asportavit.' What of the “animus furandi ?' Is there any? No. Is there a corporation in law 'doli capax,' so that it may be guilty of larceny? Doubted and the question reserved. So, too, the doctrine of Por- tia's case seems to be afield; for in the opinion handed down as reported by Mr. Shakespeare, it was held that said pound could only pass to the plaintiff on a condi- tion subsequent, viz.: His ‘lands and goods are by the laws of Venice confiscated to the State of Venice' if (much virtue in 'if') in the cutting thereof by plain- tiff ‘one drop of Christian blood' was shed. Accord- ingly, observe that plaintiff in that case entered a re- mittitur of the pound, in fact, suffered a non-suit, rather than face the loss of all his assets, real, personal and mixed, while here defendant concedes plaintiff the pound itself, and says he has it. Is Portia's law law? We may answer that question in the phrase of the same learned reporter in another case (see Hamlet's case) to-wit: “Ay, marry, is’t; crowner's quest law.' Thus it falls out that the last questions raised may be put aside as mere flotsam and jetsam.". “We now come to a phase of the case, eyed at first a little askance and then critically. Whatever value it has is in showing how one taper lights another in the briefs, as in the world at large. It shows, too, how diffi- cult in a close matter it is to determine the proximate cause of things—or the probable result of a given cause. Possibly its force is somewhat spent in disclosing what hidden pitfalls lurk in the primrose paths diverging Primrose Paths from the beaten way in brief-making for appellant courts. As wayfarers in the main-traveled highway of the law, we shall set it down to point its own moral, thus : Appellants' scholarly counsel close a good brief in chief with a short and modest flight of fancy-a bor- Hamlet's Case Wit, Wisdom and Philosophy 159 over its lack of preparedness to coerce or persuade the judicial mind.” Seal of Secrecy CONFIDENTIAL COMMUNICATIONS AND HYPOTHETICAL QUESTIONS “A litigant should be allowed to pick and choose in binding and losing—he may and he may not lose. If he binds, well and good; but if he loses as to one of his phy- sicians, the seal of secrecy is gone—the spell of its charm is broken as to all. May one cry secrecy! Secrecy! Professional confidence! when there is no secrecy and no professional confidence? As well cry peace, peace, when there is no peace. Jeremiah vi, 14 q. v. To hold so leaves a travesty on justice at the whimsical beck and call of a litigant. He may choose a serviceable and mel- low one out of a number of physicians to fasten liability upon the defendant, and then, presto! change! exclude the testimony of one not so mellow and serviceable, to whom he has voluntarily given the same information, and the same means of getting at a conclusion on the matter already uncovered by professional testimony to the jury. There is no reason in such condition of things, and where reason ends the law ends. The right to secrecy in confidential and professional matters may be likened unto salt. But what if the salt has lost its Salt savor, wherewith may aught be salted? To my mind the time has come for us to take a step in advance and to construe the statute to mean that when a litigant breaks the seal of professional confidence and secrecy, and waives it as to A, then by the same token it is broken and waived as to B, C, and D, who bore the same relation to him as did A.” “I vote to concur in the opinion of my learned Brother Faris. It but applies (not half-heartedly, but with modest thoroughness) the doctrine of 'waiver’ to the precise questions really in judgment. Now, waiver is a Modest Thorough ness 160 Wit, Wisdom and Philosophy Device doctrine not new, anxious, or unreasonable, but, contra, a favorite and familiar doctrine of the law, standing the supreme test of reason, experience, and common sense. (Instruments which impugn or maintain all theories.) As I see it, the rule announced does not come to destroy the statute, but to fulfill the statute in its very soul and sense; that is, its true intentment and meaning. It goes without saying that waiver should not be applied to every case mechanically and without reference to the facts, but with just discrimination and in view of the facts in each case. So used it is constantly applied in court as a most wholesome and useful device in reaching a just end. While some of the language of the opinion is a little broad and may have fallen as if dun fervet opus, yet such general language must be read with the concrete case held in judgment, and, so read, it does not mean that if a litigant uses a physician as a witness, thereby and without more, every other physician he has ever had at other times, places, or occasions, may be thereby allowed to break the seal of professional se- crecy. Nor does it mean that litigant saying or doing nothing of substance to lift the statutory veil of secrecy imposed upon sickroom disclosures to his physicians (arising by examination, conversation, or consultation there), his physician may be allowed at the beck and call of the adverse party (and without leave or waiver by the patient party) to himself break the virgin seal of secrecy or lift its veil. If the privilege is personal to the party, as abundantly shown by cases cited by my Brother, and is thereby held in the hollow of his hand, why may it be not waived by act, conduct, word, for the time, place, or occasion in hand? If once waived, must the waiver not be held to operate to an extent limited only by logic and reason? I think so. The scandals in beating down the truth arsing from a too harsh and literal interpretation of this law (if unaided Hollow of His Hand Wit, Wisdom and Philosophy 161 and unrelieved by waiver) every one of us knows by ex- perience and observation in the court room." ORDINARY CARE AND NEGLIGENCE “It would be a bold judge who said that appellate courts had always been able to hold a steady and even voice in promulgating or applying general principles on this head. Cases may be found that approach the matter from this, that, or the other angle (including that of dual capacity) but no soundly reasoned case can be found, I think, where the master had a conceded vice principal present, as here, and where such vice prin- cipal personally, by virtue of being master and in the line of his rank and duty, took charge of a transaction and injured an employee negligently by exposing him to extra hazard, or by making his field of operations un- Extra reasonable and unsafe, where the doctrine of fellow ser- Hazard vant was allowed to bar recovery. The reasoning and facts of many cases sustain that view of it. The negli- gence of the master, if any, was in the failure to give notice at the crucial moment that the belt was going on. The method of performing the work called for that no- tice. The instruction eliminates that idea, while it is not clear precisely what it does mean, yet it is plain enough that it directs the jury's attention to a feigned or false issue and away from the place or issue where the shoe actually pinches. The quail uses that device to protect its young brood when surprised by an intruder. Alcibiades One Alcibiades used it. I remember to have read it in an idle hour (i. e., before I came on the bench) that he had a very fine dog with a beautiful tail, costing (that is, the dog did) $1,000 or so. The dog was a favorite in Athens (say B. C. 420), and its tail (proudly car- ried) was much admired by the versatile and artistic citizens of that town. Having cut off the dog's tail, and being brought to book therefor (for all I know before Crucial Moment Brought to Book 162 Wit, Wisdom and Philosophy the dicasts at the judgment seat), Alcibiades justified himself by saying he cut it off so that the Athenians would talk of that and say nothing worse of him. But the foregoing plan of obscuring the issue by putting forward something else to talk about is no working theory in the administration of justice. The precept is: The law is always more praised when it is consonant with reason. Plaintiff was gravely injured, and, if his story be true, had a meritorious case. He was entitled to have the jury's mind focused on, not diverted from, the issues. But we do not approve the form of that in- struction. We eye it askance as a daring and anxious Anxious Novelty novelty that disturbs more than it benefits. It would have been better to have said that plaintiff was re- quired to use due care in doing his work and then gone and defined, in the accepted language of that law, what due care was, instead of using the formidable words: ‘Was bound to use his senses and intelligence and ex- perience.' What does that sweeping and sounding ag. gregation of words mean, even to a lawyer or judge ? They swell by contemplation and broaden by analysis. What did the plain men in the box understand, either taken in aggregate or severally by them? They smack much of argument by overpressing the matter; and in trying to assign a meaning to such all-embracing terms as 'senses,' 'intelligence,' 'experience,' might not the jury be led astray, and their native hue of common Native sense (the immediate jewel of an ordinary juryman's mind) become ‘sickled o’er with the pale cast of thought,' or lost in fog? We fear so—nay, we think so. Those words do not form part and parcel of the mild, simple and colorless definition of due care the law delights in. The beaten way is the best way and the safe way.” “Indeed that the absence of a guardrail is repre- hensible, in certain contingencies, was a fixed idea in Aggrega tion of Words Hue Fog Wit, Wisdom and Philosophy 165 Devil and rounded out at one end into a ladle or bowl like a table spoon. ... It is the personal view of the writer that one who handles dynamite with a spoon needs one with a long handle—the longer the better. If authority is necessary for this judicial dictum, it may be found in the Danish proverb to the effect that 'he who eats out of the same dish with the devil needs a long spoon.' ... It is fundamental that a master cannot delegate his primal duties as master by a gen- eral order or rule and thus avoid responsibility. If the courts would tolerate such ready at hand scheme of easy avoidance, then the employer of men might weil add new worldy significance to the lines of the good old hymn: "This is the way I long have sought, And mourned because I found it not.'” “The underlying reason of the thing requires that each case should stand on its own pertinent facts, in order to give that flexibility to ordinary care which would make it a test of liability in the interlacing and Interlacing - Relations the varying relations of modern life.... The law of nature, the spontaneous and impelling law of self- preservation, is of ancient and entirely respectable origin and a brakeman on top of a derailed, swinging freight car seems fairly within its purview; and all this without giving any force to the maxim, ‘All that a man hath will he give for his life.' This doctrine formulated in that often misquoted saying is unorthodox, and is not only stated too loosely, but its gloomy and sinister au- thor does not recommend it to the courts of a Christian commonwealth. “Such a view was too close and narrow, adheres to the dry letter of the text, and squeezes the life out of a humane regulation." 166 Wit, Wisdom and Philosophy Sport of Chance Public ELECTIVE OFFICE, VOTER, SCRATCHED BALLOT "A public elective office is a public agency, which, barring any constitutional inhibition, express or im- plied, may be abolished, curtailed, or regulated by legis- lative enactment. Nevertheless, it does not follow, be- cause a public office created by law is not property in a precise sense, that a duly elected incumbent is at the whimsical sport of chance, caprice, or of intermeddlers or any form of illegal and unauthorized interference. A privilege or status so conducive of longevity and de- light, that once incumbents of office, 'few die and none resign' (See Jefferson's letter to Elias Shipman, of New Haven, July 12, 1801, where the substance of the doc- trine is announced), may not be held by a thread so Slender - Thread slender and precarious.... Indeed, in the times past the custody of court records was intrusted to one of the judges, 'custos rotulorum.' See ‘Master of Rolls,' Black’s L. Dict. The word 'clerk' (known to our fore- fathers as 'Clark') at root denoted a member of the clergy, and the time was when the law and the gospel flowed from the same fountain; judges of the courts were taken from the ranks of the clergy (1 Bl. 7 17), and the maxim, ‘Nullus clericus, nisi causidicus,' was in full vigor of bloom and fruitage.... Howbeit, it does not follow that a clerk of a court, charged with the heavy crime of murder in the first degree and ar- raigned in his own court, should be compelled to act as clerk at the trial of his own case, and ultimately sign, peradventure, his own death warrant. Such condition is abhorrent to right feeling, the fitness of things, and the decencies of life, and ought not to be demanded or tolerated by law. Manifest scandals and misgivings would flow from such unseemliness and indecency, not alone because it would be unnatural and unmerciful to compel a man to act as clerk where his own life or death was trembling in the scales of justice, but poor human Wit, Wisdom and Philosophy 167 Deep and Keen nature may well be deemed inadequate to resistance of temptations incident to such opportunity. Deep and keen is the significance of the Master's formula, 'Lead us not into temptation,' and not without force is the ad- monitory precept of that great jurist, who taught his law at the feet of Gamaliel, ‘Abstain from all appear- ances of evil.' The law should first cast the mote out of its own eye before it can see clearly the beam in an- other's. “An office, speaking in colloquial figure, is a hole. An officer is a peg. Peg and hole go together even as a pea fits the pod, or a hand the glove." “Could the very Solomon himself know how liberally a voter would use a pencil in scratching a name from a ballot, absent evidence on habit, temperament, time, con- dition of mind, taste, and surroundings, as here? We trow not. Not knowing, to that lack of knowledge a beatitude or admonition applies—found, I think, in Beatitude Theophrastus—(I quote off hand from memory and may corrupt the text): 'Blessed is he who knowing nothing avoids giving wordy evidence of the fact.'” The court wrote at length upon the legal and histori- cal meaning of the word “Commons.” “Therefore, they say, as the word has been carried forward in the statute from that day to this, the mind of the juristic scholar must go back to the quaint and singular conditions and usages of French and Spanish villages in Upper Louisiana to gather the meaning of the word 'Commons.' Informed by the annals of those times, it is argued the word ‘Commons' in the incor- porating act means commons as existing and understood at that time in those villages; that the lawmaker was dealing with commons of that sort. Certainly, the day was when the villages of Portage des Sioux, St. Charles, St. Louis, St. Ferdinand, Village a Robert (now Bridg- ton), Ste. Genevieve, New Bourbon (afterwards a part 168 Wit, Wisdom and Philosophy Prowling Indians Sub of Ste. Genevieve) and Carondelet were governed by syndics and had common field lots, out lots, village lots, and commons, each with a well defined and peculiar meaning in a French or Spanish village, whose inhab- itants brought from their mother country customs and laws singular to community village interests, not native to English speaking people. In the case of common field lots, they were aggregations of narrow parallelo- grams, loosely speaking, of land under one fence, each lot of so many arpents (an arpent being a little more, a little less than an acre, varying with locality and with whether it was an arpent d'ordonnance, an arpent cum- Arpent mun, or an arpent de Paris), and doubtless were culti- vated by villagers, each working his own lot at the same time his neighbor did his, not only for sociability, but for mutual protection from 'clawed' beasts of the forest and prowling Indians. . . . One division of this court in a case now sub judice, heard with pleasure and Judice profit an illuminating discourse on the several meanings of French and Spanish ‘out lots,' 'village lots,' 'com- mon field lots,' and 'commons' from Edward C. Kehr, Esq., of the St. Louis bar, a short time before the in- stant case was argued in banc. On the argument of the instant case I leaned to the view of respondents' learned counsel, to the effect that the meaning of 'com- mons' took controlling color and twist from commons as known to the early French village, and, since such commons had passed away, the word in our present statute became in a sense a dead letter as referring to a dead thing; therefore the incorporating petition by per- mitting all reference to commons, whether existing or not existing at Wellston, could not be held to be fatally defective as violating the statute. But research and re- flection altered my views. We need hardly go back a hundred or more years to the days when Kaskaskia of Illinois was in her pristine and now forgotten glory— Color and Twist Wit, Wisdom and Philosophy 171 Indiges- tible Com. modity made Pie Company.' We do not understand (or hold) that said corporation made all the pies eaten in that great and hungry city, but we do understand from the evidence (and would be inclined to hold, if necessary) that it had the monopoly in the making and selling of that sad and indigestible commodity known as commer- cial (as distinguished from political) pie, a commodity abounding in the marts of that town, it is said and traf- ficked in for gain; a pie made of the Ben Davis apple (this is pure hypothesis and, hence, obiter), split, dried, and subjected to other forms of mysterious unpalatable manipulation. ... The pie end of Mann's business never busted." "They put all their eggs in that one basket. The basket fell. Their eggs broke and rightly so; for there is no showing made disclosing an abuse of discretion nisi in allowing the amendment." " ... defendant's discontent was apparently allayed by the verdict, whereas plaintiff's seemed to be inflamed thereby. Thus is Beaumont & Fletcher’s dic- tum in Love's Cure (Act III, sc. 2), shown to be well grounded, viz.: ""What's one man's poison, signor, Is another man's meat and drink.'” DECEIT Borrowed “ ... 'if it could not be done in a straight line, it could not be done in a circle.' ... The transaction finds its counterpart in a very ancient one in which, by B. uniting a borrowed hand, to a real voice, a notable prop- Hand erty transaction was brought about. As preserved in an authenticated record, it runs as follows: 'And Jacob went near Isaac his father; and he (that is, Isaac) felt of him, and said, the voice is Jacob's voice, but the hands are the hands of Esau.' The record of 172 Wit, Wisdom and Philosophy Birthright this last case further shows that Isaac's eyes were dim, and, because the hands extended to him were hairy, like Esau's Jacob effected, in conjunction with a prior trade of birthright for a meal of pottage, a transfer of Esau's interest, contingent and expectant—those intended for use, as well as those intended for ostentation. If we may be permitted to loiter afield a moment, it may be said that Jacob by that transaction showed he was well named, “the Supplanter' (“sub,” under; "planta” sole of the foot, or heel). The record has it that in the very act of birth he held Esau by the heel, and certainly, by afterwards laying him by the heels, he justified his Venerable name. But we are not called upon to review this ven- erable transaction, and adjudicate upon it. Live busi- action ness presses, and 'sufficient unto the day is the evil there- of.' ... This contention respondent answers, in one form, in the pioneer figure and warlike metaphor, fol. lowing: ‘Lovan has done like many a good man has done under similar circumstances. He sat quiet in his castle, blunderbuss in hand, while the wolves howled and prowled through the woods.'" rang- CONTEMPT Stream of Justice "Indeed, so manifest is it that the stream of justice must be kept pure from contamination at its sources, and that the judge of the court, jurors, witnesses, and officers should be shielded from the humiliation of in- sult or the terror of violence, or itching desires or sinis- ter attempts to improperly influence the one or the other, that the majesty of the administration of the law should find its prototype in the gravity and dignity of a court- room free from the belittlement of contemptuous inde- Contemptu- corum, and that the trials should be conducted, and the Indecorum decrees, orders, and judgments of the courts of a free people should be carried into execution, without molesta- ous Wit, Wisdom and Philosophy 173 Corrup- tion tion or interference, unawed by power, unfrightened by intimidation, unemasculated, and unperverted by cor- ruption. We say all these things are so manifest that it has become accepted doctrine everywhere that the right of punishment for contempt is inherent in every constitutional court having common law powers, and in the very nature of things, and that such courts cannot be shorn of that right by the legislative branch of the government. It is an inalienable right in court, of the very essence of its being, one that it may not ignore or allow to be clipped away if it would. These are horn- book propositions, asserted by all text writers, laid down by all courts, and worthy of all acceptance by intelli- gent men as of course, hence need no citation of au- thority to sustain them at this day. ... On the last head, I do not hesitate to say that the unregulated, ar- Whimsical bitrary, whimsical power to fine or imprison for con- Power tempt, a power that will not brook a mere temperate and reasonable control, is contrary to the genius of our institutions and the policy of our Constitution and stat- utes." WILLS “Wills are favored. The maxim is: It is to the in- terest of the State that the last wills of its citizens be sustained. “Interest reipublicae suprema hominum tes- tamenta rata haberi'. Of course that maxim is merely a cautionary one of use in dealing with an important subject of great tenderness among all enlightened peo- ple. There is another rule of interpretation heading to the same end, viz.: that an instrument should be so construed that the thing shall stand and not fall (ut res magis valeat quam pereat). Attending to them both a doubt arose, viz.: whether, reading the will by all its four corners to get at its illuminating purpose, it could 174 Wit, Wisdom and Philosophy be said to be the intent of testator to give his son (in the grasp at intervals of a tyrannical and uncontrollable vice, subversive of business judgment) the power to give away or alienate his estate, or hypothecate or anticipate his income. Whether the father did not intend to guard against that, and therefore whether the construction put upon his will should not do so. Whether if the will is not to be given that construction, it might as well not have been written, for at bottom, does it effect anything of substance? Is it to all vital intents not an empty Thunder ing in the noise, a thundering in the index? But on the other Index hand, can it be surely said the father had lost all hope of his son's reformation? Did he intend to cut him for- ever off with an income optional with the trustee? Or create an irrevocable spendthrift trust with no title in the corpus of the estate? If he did, he used unfortun- ate and inexact language of doubtful import that is not sufficient to cut down the estate granted in a former clause." "Figuratively, judges dealing with wills are to stand in the shoes of the testator, or, sitting in his arm chair, look through his spectacles as near as may be, and thereby, when the intent is obscure, try to get at it and give its effect. ... The intent of a testator, ... has been called the pole-star of judicial interpreta- tion. “Counsel hazard the suggestion that what money they had was the test, not what they spend.' So ? There is quicksand there, and one should sound at every step for firm ground. Does the pecuniary value of a father's life to his household (stand) on the cash he has and not on what uses he puts it to; i. e., on what he spends for the household—in this case $1,200? That concept Philosoph- not only opens a philosophical vista for the mind's eye ical Vista to gaze down, but provokes at least one inquiry, thus: Quicksand Wit, Wisdom and Philosophy 175 Is a cheese-paring, close-fisted father who hoards like a miser, of more pecuniary value to a mother and child than an open-handed, great-hearted gentleman whose earnings during life flow for his household as unchecked and ungrudgingly as does the love he bears them? There is a philosophy about keeping, as over against giving, hid away as a kernel in a nut in the epitaph on an old Nut in Epitaph tombstone in Doncaster, Yorkshire, worth something on the thought, to-wit: "" "That I spent, that I had; That I gave, that I have; That I kept, that I lost.'" Pikestaff “Dr. A died ... possessed of an estate of $60,000 and Mrs. K and her husband lodge a bill in equity ... against his heirs the object being to decree her a distributee on behalf of her son. That Dr. A was inter- ested in the boy is as plain as a pikestaff; that he in- dulged himself with, and excited the hopes of the boy's parents by, promises looking to his advancement and preferment, is plain; that at spells he was warmed by a benevolent testamentary disposition is also plain; that the Kirks stored away and nursed these promises and were solicitous for their fulfillment is natural and plain. But, when he came to the making of a will, it can be said of him, as set forth in the speculation of the melan- choly Dane, viz. : "And thus the native hue of resolution Is sickled o’er with the pale cast of thought, And enterprise of great pith and moment With this regard their currents turn awry, And lose the name of action.'" 176 Wit, Wisdom and Philosophy IDEM SONANS “The question may be put in another form, namely: Is ‘Troth' idem sonans with ‘Yroth ?' We cannot well give an affirmative answer to that question. The name ‘Yroth’ is so archaic and singular in its spelling that Archaic we cannot rid ourselves of a suspicion that the record of the patent was read into the record instead of the original, and that it is imperfect (in) that the copyist mistook ‘Y' for 'T' which might readily happen. If that be so, the truth may be ascertained on another trial by reference to the records at Washington. We must take the unchallenged record here as we find it and as importing verity. The letter 'y'a consonant (when not a vowel), has fricative (and we might add frisky) qual- ity values in sound; for example, the sound of short or long ‘i;' the sound of 'e' as in ever (vide 'zephyr'); the sound of long 'e.' Take the French town, Yvetot which a scholar tells me is pronounced ev-to, or the patron saint lawyer, dead for 600 years, St. Yves, pro- nounced as if spelled ev. (Nota Bene): We mention this saint for scientific purposes to illustrate a dry point in pronunciation and the values of the letter 'y' not to bring up anew or blazon forth in mother tongue the sar- castic and scandalous innuendoes slyly sleeping in the shade of the dead language of processional chant in his honor, which a pundit once told me ran this way: Pundit Slyly Sleeping "'Sanctus Yvo erat Breto; Advocatus, et non latro, Res Mirana populo.'” “But I know of no tolerated usage permitting ‘Y' to have the sound value of 'T.' Hence notice to Troth as here, cannot be held notice to Yroth. Accordingly we rule that, upon the utmost fringe and stretch of liber- ality, the two names are not idem sonans.” Wit, Wisdom and Philosophy 177 EMINENT DOMAIN “My reasons for concurring in the result reached by my Brother are these: It is the settled doctrine of this court that a party whose land has been appropriated by a railway company for quasi public purposes, as was this land, is not entitled to recover the possession of the land by ejectment or by any possessory action. His remedy is for the value of the land wrongfully appro- priated. The solidest grounds exist for that proposition which those curious in that behalf may verify by con- sulting the case ... (just handed down, and not yet officially reported, and cases cited), and which grounds these plaintiffs recognized in bringing their suit in its present form for value, and not for possession; and the fact that the courts were able to work out that sensible and useful theory but demonstrates that the adminis- tration of justice is a practical affair, an invention for the adjustment of the rights of individuals and is not a technical and accurate science, but is an applied science, adjusting itself to work out justice in all the protean shapes the dealings of mankind assume. There being no fraud, no concealment, no covin, no fiduciary relation, and plaintiffs' ancestors having received, kept, and used the purchase price of this land a half century ago, and they having stood by with folded arms until a great city was built on it, the healing influence of time must be al- lowed full play, and the result reached does exceedingly Exceed- excellent justice.... I agree to the result reached u Excellent by my Brother Bond. This is one of those cases where Justice the court is put in a strait betwixt two because the broad justice of the matter runs in a strong current with defendant, but where (on some phases) there is judi. cially made technical law in favor of plaintiffs in this jurisdiction as is abundantly shown by the strong brief of respondents' counsel. It is true that under married Protean Shapes Wit, Wisdom and Philosophy 179 Power or state, under a bounden duty to proceed in administer- ing justice with calmness and dignity, set out on the road inevitably leading up to such conflicting jurisdic- por tion? Is jurisdiction a mere matter of power or caprice? Caprice If the federal court assume it in the first instance (as here), may the state court take it away directly if it has the might? Or circumscribe it, baffle it, or whittle it away by ingenious indirection? Or may two courts proceed on contrary theories at the same time, and grind a litigant between the upper and nether millstones of jurisdiction, the one saying aye and the other nay, and each speaking in an imperative voice? In the old days on the border, Rob Roy and his clan had a property no- tion based on power alone. Of them it was said: . Rob Roy " The good old rule Suffice them—the simple plan, That they should take who have the power, And they should keep who can.' Sleight of Hand “Such ‘simple plan' has no place in jurisprudence when applied to jurisdiction. So what a state court may not seize with power, directly, it may not take in a roundabout way by 'inching' over on the edges, or get- Judicial ting the same result by indirection.” Necro- “Under some sleight of hand in judicial necromancy, mancy hitherto unheard of, it acts the role in the childish play of ‘Now You See It and Now You Don't See It.' It is argued that it (the court) has nothing whatever to do until the judge of division 1 says so. If he never says so, that ends it. It sleeps on until he awakes it into life and action. · Being dominant, division 1, may leave it in that pickle, and go to the General Statutes for power to call in outside help in changes of venue. If a court, a Judicial judicial entity, can be created of that sleepy and novel Entity character, it would seem to be under some doctrine more Wit, Wisdom and Philosophy 181 nounced? I trow not. ... To so hold would be the same as saying that the fox, who takes his prey secretly by adroit cunning and indirection when the farmer is not by or looking, is entitled to more respect than the hungry lion, who takes his in the open day by use of sheer might, main, tooth, claw, and terror, unafraid of the face of man.” REAL ESTATE LAW Bow Mother's Knee “'Enough specks make an apple rotten.' The enough specks theory, thus making its virgin and blush- Virgin and Blushing ing bow on the stage of real estate law, may well ex- cite a mild judicial interest-an interest to be tem- pered by a word of caution, thus: If comparisons are not 'odious' as some writers put it, they may be 'odor- ous' as others will have it, and, finally, in dealing with similitudes must we not be chastened by the thought that so great a jurist as Lord Mansfield found it wise to declare (so Lord Westbury vouches) that ‘nothing in the law is so apt to mislead as a metaphor.' ... We are told at mother's knee that continued dropping wears away a stone, that enough pebbles change the course of rivers, that while a swallow may not, yet many swallows may, make a summer, and why not many specks spoil an apple? We shall attend to the cumulative effect of ‘specks' on real estate titles be- fore we dismiss this opinion. . . . It is next ar- gued, as we grasp it, that though the defects and ir- regularities specified are not fatal singly, yet, taken together, their cumulative effect so weights down de- fendants' title in a seal of illegality as to drown it Seal of out. Such theory is more specious than sound as a Illegality working rule in reaching justice. It runs on the no- tion that in unity there is strength-witness, the fable of the father, sons, and bundle of sticks. But there Bundle of Sticks Wit, Wisdom and Philosophy 185 Face Like Flint notion that men are bound to be enemies wherever and whenever one employs and the other serves, this court, as I read its judgments, has set its face like flint against that pestiferous heresy as unknown to the law of the land, ruinous to the social compact in a nation of free people, unsound in philosophy and false in fact. We but play with the fire when we directly or indi- rectly countenance it. We cannot agree A. loses or weakens his humane instincts toward B. when he hires B. to labor, or when he takes out a policy of insurance partially indemnifying himself against loss by reason of imperfect machinery, inadvertent lapses, lack of due care, forgetfulness, or other form of unintentional wrong. Labor is honorable. It accords with divine law. It accords with natural law. There is mischief in idleness. Respect for the life, limb, and happiness of the laborer is implanted in man and reigns among the natural equities of the human breast. That there may be now and then those who violate these equities does not militate against the rule itself. A predispo- sition to fraud, neglect or any form of wrong is never presumed by the law. It must be established by proof. In dispensing justice through the courts, where one of two open theories must be taken, and the other left, one ignoble and the other noble, the law takes the nobler one of the two where the facts warrant either. To say that partial indemnity is bound to produce neglect, and that because the master cannot contract against his own neglect, therefore he cannot contract for indemnity, is unsound argument because the pre- mise is fanciful and unsound.” “A bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them. His fix may be likened unto that, of one, who,, Buys buying lands, buys stones; or buying beef, buys bones ; Bones 186 Wit, Wisdom and Philosophy or borrowing a coat, takes it with holes in and but- tons off — that is in the use of his bare license he takes on himself the risk of perils from defects in the prem- ises. Mere permission, without more, involves 'leave and license' but bestows no right to care. If A. gives B. leave to hunt mushrooms for his table in A.'s field, and B. falls into a ditch or uncovered pit, and is harmed, no duty was raised, no breaches made, and hence no action lies. As put by way of illustration in the books, suppose A. owns a sea view, a cliff, and gives B. permission to walk on the edge of the cliff for pleasure or air, it would be absurd to contend that such leave cast on A. the burden of fencing the cliff to keep B. from falling off.” STARE DECISIS “Surely we should not slavishly follow precedents, revolting to right reason however long the line of them, or whatever glamour be about the names of those deciding them. Surely it is good doctrine that a court Hew to of justice should fearlessly hew to the line of the law, - the Line though in doing so such hewing distressed and unset- tled the business affairs of the state. But should such business affairs be distressed and unsettled unless reason revolts at maintaining the status quo. And speaking of a court's hewing to a line, without fear and without favor, are not those brave words auda- cious, and would not one be a bold and bad axman in hewing to the line, unless prime care be taken to first chalk down the right line to hew to? So, is it alto- gether philosophical to disregard precedents? Is the venerable doctrine of stare decisis to be quite whis- Whistled Down the tled down the wind in the case? Is not certainty of Wind the very essence of good law? If many wise and good judges in different times in widely separated jurisdic- Bad Axman Wit, Wisdom and Philosophy 187 Axiom ch reagitatio-onger to be of an axiom tions, each of them with open minds seeking for truth and justice on independent lines, each looking at the subject-matter from all sides, all finally with one ac- cord agree on a given proposition, does not that prop- osition partake of the nature of an axiom; that is a proposition no longer to be questioned and about which reagitation, discourse, and argumentation come to an end? Is there not a strong presumption, to be indulged by a seeker after truth, that a conclusion is right which has been arrived at by the trained minds of many just men in possession of all the facts and in full light of possible reasoning (pro as well as con), and unreservedly acquiesced in after re-examination?” “A court has nothing to do with what is not before it. A court should not judicially decide what is not judicially presented. To hold one way or the other on the constitutionality of a fire insurance law in a case where fire insurance and a fire insurance policy are not the subject-matter of litigation is to inad- vertently step aside obiter. The decision, therefore, Illuminate decides nothing. It may illuminate or persuade (as it Persuade does), but it cannot control when the question comes up in some case riding off on the point. Its only office is to mark time; it leads nowhere; it goes nowhere. If by ruling the statute constitutional in part the de- cision would come under the doctrine of stare decisis or res adjudicata and thus be a precedent to be fol- lowed below or above, I would be inclined to agree to it, as now advised; but, as it can have no such effect I mark myself as saying nothing on the question of constitutionality. If the thing 'were done when 'tis done, then 'twere well it were done quickly' (by a side stroke as my brother does it). But as 'tis not done when 'tis done, then were it not well it were not done at all till the time is ripe to so do it that it will be done once for all? 'Reserve your fire,' said the Bun- or 188 Wit, Wisdom and Philosophy White of Their Eyes Limbo on Nonsense ker Hill officer, 'till you see the white of their eyes'; that is, till you have a mark to shoot at in close range. May not judicial 'fire' profit by that advice ?”' “Broadly, as a main proposition, it is contended by appellants' aggregation of veteran counsel that we de- termined nothing correctly in those two cases. There- fore nothing was set at rest, and every question there involved must be reagitated and redetermined. To that end we are cited to the same authorities relied on to sustain the selfsame propositions advanced in briefs in those cases and ruled adversely. It must be appar- ent that if there was a general rule allowing two hear- ings on the same questions it would be a blazing in-B Infirmity firmity in the law. If courts put themselves in a limbo on nonsense and set themselves continuously to plant- ing and then pulling up, weaving, and then raveling (vide the classical legend of Penelope's web) to stitch- ing and ripping, or, what amounts to the same thing, to deciding and then setting aside their own solemn adjudications, men and their posterity would think ill of our understanding. The doctrines of the law of the case are related to stare decisis and res adjudicata, and are settled doctrines of this court-doctrines hav- ing their exceptions in emergencies—but none of those exceptions apply here. There would be no end to liti. gation and no certainty in the law unless we adhered rigidly to the general rule of the law of the case and applied the exception to that general rule with rare Palpable Wound circumspection and only when a palpable wound had been inadvertently given to justice and where no in- jury would result from a change in our judgments. In the named prohibition cases we halted the trial be- low on the prayer of these appellants. Why so? To settle vital questions of jurisdiction they deemed nec- essary to a just hearing. We did settle them on full consideration, and the trial judge resumed the trial Wit, Wisdom and Philosophy 189 at the point where he was arrested, and thereafter proceeded with it in conformity with our rulings. De- lay has occurred in a matter of pressing public mo- ment, and outlays have been made on the strength of our rulings. We deem it in the nature of a scandal to Scandal to Adminis- the administration of the law to undo at this late day tration what we have done by treading back on our tracks and sending this proceeding out of court with a tan- gle of confusion left behind and to the detriment of a great city, unless we are forced to do so by the im- perious call of the law itself. We hear no such call. We see no such necessity. The stiff general rule is that the lower court was bound by our former de- cisions, and so are on second appeal.” BOULEVARD Mountain “In the jurisprudence, as in the other affairs of mankind, a mountain should not be made out of a molehill. Those judges who strain at gnats are in the Molehill same category of those who swallow camels. Matt. 23, 24. Is it likely the lawmaker cunningly hid away the meaning of his law in a word of not only one sylla- ble, but of one letter-a meaning to be got at by boring with a gimlet of grammatical construction? That would be to try to stand a cone on its apex. It would be multum in parvo with a vengeance, indicating a legis- lative power of condensation hitherto undreamed of. Appellants conceded that two lines are meant by the charter language; and this, although the word 'line' is used in the singular number. That concession is due to the very reason of the thing, since there are two sides to every boulevard, and therefore two building lines, both of which must be within the purview of the law. Reason, therefore teaches us, concedes counsel in effect, that the phrase "a building line' means two 190 Wit, Wisdom and Philosophy Cupid's Bow building lines. Does not the same reason teach us that, if the lawmaker had meant two straight lines, he would have said so? The word line in and of itself may (but does not necessarily) mean a straight line, even in mathematics, and certainly not in everyday speech. Hogarth's line of beauty was a combination of curves somewhat like cupid's bow. We speak of a boundary line, but we do not mean in all cases a straight line. We speak of a line fence, and may mean Zigzag a Virginia worm fence—zigzag fence. We speak of a Fence bee line, and then we mean a straight line. The sub- ject matter must be looked to to see whether 'line' means straight line. As used in the charter, we think the word means a mark of division or demarcation an outline or contour, a limit or boundary. Vide Web. Since there is no dispute about tastes (De gustibus, etc.) it is not worth while to argue that good taste re- quires a straight building line in a street reconstructed for travel as well as beauty and pleasure to the eye. Jones may like straight lines; Brown, curves; Smith, broken lines. The legislative mind may prefer a com- bination of all-a fantastic or rococo style. Is there anything in the word 'boulevard' that necessarily means straight building lines? Let us look into that. It was once a war-like term, and meant the flat top of a bulwark or rampart—the fortified wall roundabout Pelshazzar a city. For all I know Belshazzar, the son of a grass- eating Nebuchadnezzar, drove his chariots on the wall of Babylon and hurled defiance at his foes. If he did, he drove on a 'boulevard'. As though beating a sword into a plowshare or a spear into a pruning hook, we are told by scholars that when in the course of time a city's obsolete walls were razed, the space occupied by the foundations was frequently turned into a street or avenue for the use and pleasure of citizens, and that Rococo Style 192 Wit, Wisdom and Philosophy Pool of Justice BILLS OF EXCEPTIONS AND CASE RECORDS “It is entirely plain that the waters of the pool of justice had become somewhat troubled from causes ap- pearing as well in the lines as between the lines of the record; and not only from that, but from prima facie reasons, relators were advised by unequivocal danger signals of a fixed predetermination in the trial judge to take no other steps in the premises either ex mero motu or on their prayer. But in the evolution of the practical and of the written law a certain flexibility, providing for hardships, for new needs, and for the suitable accuracy in preserving the incidents of a law suit, to wit, the official stenogra- pher's notes, was created . . . finally the legis- Legislative lative torch burned up all the learning of those cases Torch requiring the trial judge, and no other, to settle and sign bills of exceptions. Writs of error cannot be sued out after one year from date of judgment. 'Right and justice,' says our Bill of Rights ... 'should be administered without sale, denial or delay, and, if reasons afield be permissible (see Hamlet's Monologue, Hamlet, Act 3, Sc. 1) where the law's delay is enumer- ated among the grounds for felo de se.... To the contrary, the cases were fighting lawsuits and par- ties litigant dealt at arm's length with each other throughout. Relators were not inops consilii, but had the benefit of attorneys learned in law. In this condi. tion of things, instead of suing out a timely writ of mandamus in the case as consolidated, covering all nine bills of exception, they elected to let eight of them sleep, and used the M. case as a pioneer to blaze the way. ... Their claims arising out of an alleged minority of relators' female ancestors at the date of their said conveyance, had been lurking in ambush for nearly a half century, and without a shadow of sug- Lurking in Ambush Wit, Wisdom and Philosophy 193 Hot and Cold gestion on our part as to its merits (for they are not before us), we may with propriety say that it would be expecting an uncommon amount of blandness on the part of defendants so assailed to hope that, when smitten on one cheek with suits of that character, de- Smitten on One fendants would turn the other cheek to be further Cheek smitten by stipulations which had for their purpose the easing of the burdens of claimants in the litiga- tion. The record shows that the defendants, each for himself, were contesting every inch of the ground, and therefore a ‘hope' for a stipulation had no substance or reason to be. He who knows all cannot be de- ceived." “This record was read from the same book as the other, and by its introduction plaintiff should be deemed to have measurably vouched for both book and officer; that is, it comes with ill grace for him to dis- credit either. By so doing plaintiff blows hot and blows cold in the same breath, and the infelicity of blowing that way is illustrated in the fable of the man and the satyr (see Aesop's Fables); it being permis- sible we think, to levy on and seize a parcel of the homely wisdom of these immortal fables to point a moral in the law now and then—for may not a judi- cial wayfarer, traveling in the dry and dusty high- ways of the law, at spells lighten his labor without lowering the dignity of his case by gathering a nose- gay for use as do other wayfarers, so long as he does not loiter afield and miss the main traveled road to ultimate justice? We read the abbreviation 'D. C. S.' in defendant's certificate as meaning 'county surveyor deputy’; that is, that Whilhelmi was merely a deputy in both instances, and, by casting the shadow of his own personality over his unknown principal, placed said principal in (at least) partial eclipse, while at the same time he 'exalted his own born' unduly. ... Partial Eclipse 194 Wit, Wisdom and Philosophy It is plain that plaintiff's position while at peace with Kopp was that the line was settled and satisfactory; but when ill humor took the place of good humor, and Ill Humor the Moore survey followed, then his acquiescence van- ished and he went to law. “Behold how great a mat- ter a little fire kindleth.' Whatever was the very right of this case during the time these neighbors were in accord remains the very right of the case when in discord. Justice is not a weathercock, to veer about with the moods of the parties litigant.” “With patience, line upon line, and precept upon precept, we have steadily pointed out what the ‘rec- ord proper' is, and the mandatory requirements of statutes and of the appellate rules calling for an ab- stract, of the record proper, as such. Over and over again it has been pointed out that no part or parcel of the record proper has lot or place in the bill of excep- tions; and if put into such bill, and left out of the ab- stract of the record proper, it is a fatal infirmity. In saying so, our yea has been yea, our nay, nay to the crossing of a 't' and the dotting of an 'i'." Fatal Infirmity DEPOSITORY BOND Na tack of “In the foregoing view of the bond, we should not take the law of this case from doctrines announced in, and applicable to, suits on official bonds, as such, and search in a great haystack of insolvency for the needles Insolvency of this, that, or the other, loss suffered by the Salmon bank. It would serve no purpose in the law to chal- lenge or encounter the anxious danger of becoming puzzle-headed with bewilderment in a labyrinth of in- solvency—a labyrinth more intricate than that of Fair Rosamond at Woodstock. ... The payments came into the trial unapplied, and, in accordance with the Minnesota and Kansas rule of application, the de- ency-a lapy Woodstock. a in accord 196 Wit, Wisdom and Philosophy ‘Blind guides which strain at a gnat and swallow a Gnat and Camel camel,' if we refused to take judicial notice of the patent and large fact that defendant is now and al- ways has been actively engaged in interstate com- inerce? As pointed out by defendant's learned coun- sel, we know as well that defendant's railroad is a Art main traveled highway—a throbbing artery—of com- Commerce merce stretching from St. Louis on the Eastern line of this state to Kansas City on the Western line and away into other states, as we know that the Missouri river exists as a navigable stream and takes the same course. Let us look at it from another point of view, viz.: That defendant has the charter power to do an interstate commerce business no one would question. That defendant is organized for the very purpose of commercial gain as a common carrier no one would question. Given such power and such congenital and Appetite organized appetite for profit, would any court require for Pro proof that defendant was using such power and ap- peasing such appetite in ways ready to its hand? As well (speaking in a homely way) require a solemn allegation or proof that fish swim, or that birds fly, as to require allegation or proof that a going railroad corporation is doing what it is born to do, to wit, en- gage in interstate commerce, when the alluring gains of such traffic are spread like a feast before its eager Corporate Eyes corporate eyes and nothing nigh to hinder.” AUTOMOBILE “An automobile is not a lethal weapon like a gun, a pistol, a dagger, or a billy. Hence no evil intent to kill or harm is presumed by its mere use. It does not fill the malignant office of poison in taking life.” Wit, Wisdom and Philosophy 199 line of wits, including Butler, Scarron, and Goldsmith, that: "'For he who fights and runs away May live to fight another day; But he who is in battle slain Can never rise and fight again.' He Who Fights “Translating that notion into allowable law phrase, it might be read thus: He who fights and runs away from a position taken on his answer and at the trial, because driven away by the court, may live to fight another day on appeal in the same position, if he marked the spot by an exception; but he who is in battle slain, that is, who selects his place voluntarily, Dies in and who legally (speaking in figure) dies in his tracks His Tracks on his selected theory, can fight no more on appeal, because (so once a mortgage, always a mortgage, so) once fairly dead, always dead.”. MAINTENANCE Bone to Pick “That maintenance is a doctrine of the law in this state is a proposition questioned by neither party to this suit, and presents no new or open question. We have no bone to pick with it, we take no issue with the views of our brother on the abstract doctrine of maintenance, put with animation and eloquence, nor say we aught against the cases marshaled and arrayed in support of the general doctrine of maintenance. But observe, that doctrine, as announced anciently, goes now with a grain of salt; for it must be under- stood that the rigors of the rules of the very old com- mon law in that regard have been tempered and mel- lowed in modern times. The modern doctrine takes out of the rule against maintenance those who interfere Rigors of Law 200 Wit, Wisdom and Philosophy in which they, or honestly believe they have, an in- terest." FENCE amcoIus and syuan Devil's Invention Fecund Womb “Now, breachy stock and a low or broken line fence are the devil's own invention for discords and squab- bles between coterminous proprietors—a fecund womb of a miserable brood of infelicities, viz., bad blood, bickering, bloodshed, fuss, litigation. In this case some of those things were hatching. Accordingly for the good of her pocket and peace of mind, she gave the roadway in return for a fence, presumably bull- strong, and hog-tight, as the saying runs." FEMME SOLE “Is estoppel applied to a married woman in her dealings with her husband precisely as to other per- sons ? Counsel for respondent argue that way. Orally at this bar it was stoutly and with animation exclaimed that (in that regard) old things had passed away and all things became new; that there issued from mar- ried woman's acts a still. small voice of command to Stil Small the courts, viz., ‘Forward ! March'! That in the 'glad- some light' of modern jurisprudence the wife appeared from head to foot armed as a feme sole; that she takes the bitter with the sweet, hence her new power to con- tract and control her estate involves a new responsi- bility and danger, to wit, estoppel in pais, now to be applied to her unsparingly with a rigid, stern, and un- accommodating vigor. We think no consideration of this question can justly proceed by overlooking the fact that estoppel in pais is not the creature of statu- tory law. It was the creature of elevated and refined ethics administered in a court of equity. Moreover, when in former days it was held that estoppel in pais Elevated Ethics Wit, Wisdom and Philosophy 201 (except as to her separate equitable estate) did not lie against a married woman at all, the grace of free- dom from that burden did not spring from statutory mandate, but was a product of judicial reasoning to attain justice. Since that grace was not given by statute, even if an order come to, 'Forward ! March !' may we not at least look about a little to inquire if statutes (silent as ours in the giving or denying of it) take it quite away? And to inquire: Who issued such order? On what road are we to march? How far? Where? If we are to march blindfolded, we might say with a certain unhappy person, who once hesitated long and doubted much in a certain crisis : “ 'If it were done when it is done, then it were well If it were done quickly,' —and have the thing over with. Estoppel in pais, cre- Rest in ated by the reason of the thing should rest in reason, Reason and we are not called upon to write the law relating to the estoppel of a wife one inch beyond where reason and common sense compel us to go; because, absent a statute on estoppel, if any command had come to march, it is from the forum of reason and nowhere else.... Was she required to post her husband ? Did she have to sue him instanter, although the stat- ute of limitation still treats her as under disability ? Shall she quarrel and fuss with him, and, what is more, blazon their squabble abroad in order that cred- itors may know how the matter stands? If the order to march requires that the peace of the household must be sacrificed in order to protect her property rights, that the love, honor, and trust at the very root of the marriage relation shall be turned into bitterness and gall of dissension and strife, then is the reform a re- Bitterness and Gall 202 Wit, Wisdom and Philosophy form? Do we march forward or retreat? This wife did what she could in a gentle way to protect her in- terests, having in mind the fact that her husband was the head of the household, that she loved him, and trusted him to comply with her requests and his own promises, and that concord in the household was a wifely duty. We do not think she was estopped as to his creditors, absent a fraudulent intent on her part. We agree that in a given case estoppel in pais may now be applied to a married woman. Her right to con- tract and control her estate results by necessary in- ference in that conclusion. But we cannot agree to apply the rule of estoppel harshly and with close par- ticularity under any and all circumstances where the marital relation is involved. Such holding would in- jure the very class of married women's acts it in- tended to protect, and would not subserve the welfare of society. The personnel of those involved in estop- pel must not be lost sight of, and it is not unreason- able to hold that facts sufficient to estop a Socrates or Socrates other 'lord of creation' would estop Susan, Jane, and Mary-good Missouri mothers all.... We do not rule that creditors must see for themselves the actual record of an actual deed in their debtor's name; for faith, says a sound lawyer (Heb. xi; 1, q. v.), is the substance of things not seen." CONSTITUTION “A grave provision of the constitution may be in- voked by every litigant at every turn to cause an act of the Legislature to perish by judicial construction, or to take away or confer jurisdiction. Not only may the right to raise a constitutional point be waived, but such point may be injected untimely, and (what is more to the point) it may be raised by a litigant not 204 Wit, Wisdom and Philosophy circumstance' of civilization. So much is history, and courts know history. We may, peradventure, also know (without any proof whatsoever and by the same token) that the red man went his way and the white man came at his heels; and, presently speaking in recognizable figure) behold, the Happy Land of the Big Red Apple! One flowing, may be, with ‘milk and honey.' Withal we may know as a court that the Milk and Pomme de Terre, the East Fork of Sac, the Asher,“ Clear, Pickerel, together with Wilson Creek, the James and its tributaries meander and murmur within the spacious bounds of Greene. So much, we take it, is ge- ography and appellate courts know geography." Honey Meander and Murmur LEGISLATIVE ACTS “A law at the outset may be too short or too nar- row, too long or too broad; hence it is subject to re- consideration by the legislative mind. It may be lengthened, broadened, shortened, or narrowed. So laws are passed to meet new or changed conditions. Astuteness in the law breaker may be met by astute- ness in the law maker. One law may supplement an- other, and when such is a fact the duty of the court is to construe them together, so far as possible, as a harmonious and symmetrical body of law, so that all Symmetri- of them may stand as related and cognate, and none cal of them perish by construction, unless there is clear repugnance, irreconcilable conflict, or complete over. lapping.” BASTARDS “There is a primary maxim of the law that, in favor of life, liberty, and innocence, all things are to be pre- sumed. (In favorem vitat, etc.) There is another: 206 Wit, Wisdom and Philosophy EQUITY AND MATRIMONY Eternal Verities “It accords with the equity maxims. Equity looks to the substance not form. Equity proceeds in accord- ance with what is good and right (ex aequo et bono). Indeed conscience and the very merits of a matter are inseparably joined by the eternal verities, the nature of things; and in administering equity, pure and unde- filed, we may adopt as a cardinal rule the command- ment of the marriage ritual, viz. : Whom God hath joined together, let no man put asunder. And to pre- vent that untoward result, the sayings of Phillips C. ... anent the conversation of our courts, which 'would sacrifice the ends of justice upon the sharp edge of technicality.'" “In a pinch, in court or out, much is seen through a keyhole, or, put otherwise, some one illuminating fact often throws a gleam of light into the obscure corners of litigation, to aid the eye of the chancellor, Flash of precisely as a flash of lightning on a dark night re. veals the landscape to a bewildered traveler. The wise Latin hath it that every living thing comes from a germ (“Omne vivum ex ovo')—which, broadly, may be put into: Every lawsuit is hatched from an egg or grows from a seed. If such commonplace generalities are allowable as a foreword to this case, involving charges and countercharges of perjury and fraud, they may be rounded with a bit of record to find the egg of the case.” “The atmosphere of the plane on which a court moves is not so frosty that no buds of sentiment may Frosty swell and bloom there. No court is so high and cold that it may not be generous; therefore far be it from us to refuse judicial aid and judicial commendation to a gentle flow of filial affection, whether that be early or late, weak or strong." in 210 Topical Index Eggs . ......... Election Laws ... Eminent Domain . Equity Equity and Matrimony Evidence . ...... Exaggeration .. Page 206 ........... 130 .........177, 178 .115, 116, 117, 206 ....... 206 124 102 ........ ........ Femme Sole . ..... Fence .. Fishermen .. Fraud ...... Freedom of Speech ... 200 ...... ............... 200 102 ....43, 44, 45, 46, 49, 56, 57, 120, ...... 68 132 ..... 106 40 Habeas Corpus . ........ Hammurabi, Code of ..... History ... Homestead ... Horse Trading ........... Huntsmen Hypothetical Questions ..... 203 ..132, 134 49 ...... 102 159 n a u s . . . . .. . . . . . .. . . . . . .. . . . .. . . . . . .. . . . . . . .. . . . . .. . . . Idem Sonans . ... Improbabilities . . Injunction ... Instructions . .. Insolvency . ..... Insurance Indemnities ... In Vino Veritas .... ..... 176 ....... 169 ........82, 182, 183 92, 150 49 184 205 12, 113, 114 119, 120, 146 ........ 96 ess . ............................................. Judge . ...... Judgment ..... Judicial Calmness . .. Judicial Notice . ...... Jurisdiction .... Jury System. .... 195 ...........178, 179 .91, 92, 94 .. .............................................. ..122, 123 151 103 Laches . .... Landmarks of the Law ..... Land Tenures . . res . ............................................ Lawyer and Money Lender .. Legislative Acts . ........... Liability ... d e r . . . . . . .. . . . . . . .. . . . . . .. . . . . . .. . . . . Topical Ind e x 211 Page ....65, 207 65. 67, 70 185 118 usee . Liar . ..... Libel. ..... Licensee ..... Lis Pendens ... Logic. Loss and Gain . .................................................. .......................................................... 88 171 . . . Maintenance . ....... ...... .......................................... ...... 199 Marital Infelicity . 101, 102 Matrimony ......... 206 Metaphysics . . . ............................................. 124 Milk ........... ..................................................... .... 134 Misjoinder . .... Misnomer 21 m e r . ................................................ Moot Court. .........144, 145 Mule .. .......................................................... ...... 72 Multiplicity of Suits . 145 S . ............................................ 195 . . ......70, 71, 72, 79, 161, 162, 164 88 Negligence . .... New Trial . Nicknames . ..... Nuisance . ....... Nullius Filius . ... .............................. 182 43 ons............................................ Objections .... Opinion Evidence . ..... Ordinary Care . ...... .........137, 138, 140 .........125, 126 .161, 162, 165 128 126 106 .............................................. 170 197 Patriotism . .... Perilous Situation ....: Personal Liberty ... Pie ....... Pleadings . ..... Precedent. Presumption of Honesty Preparation . ..... Principal and Agent . Profitless Litigation ... Public Elective Office 198 197 . ................................................... 158 117 118 ....................................... 166, 167 Real Estate .... Record . . ........ Religious Liberty . .33, 181 ....193, 194 82 .......... 212 Topical Index Page 159 30 79 Seal of Secrecy ........ Sense of the Law ... Soldiers' Homes . ... Speed Ordinance . ...... Standard Oil . .. Stare Decisis . Statutory Construction .... Stockholders ... 37 ...186, 187, 188 .......141, 142, 143, 144, 149 ...............37, 39 Taxes . ...... Tenancy at Will .. Tres passer .. Trial .. passer . ................................................... 203 197 163 .113, 198 .... 207 Truth . Useless Litigation ........ .118, 144, 145 ..................................................... Vendee . Voter . ......... ....... 43 ........166, 167 Warranties . .... Wills .... Witnesses. ........ 191 ..........24, 173, 174, 175 207 Cucosos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . .. . .. .. . 214 Case Index Page on Which Quoted 65. Libel. Cook v. Globe Printing Co. ....127 S.W. 358-9 67. Libel . ....... ..Meriwether v. Publishers: Geo. Knapp & Co. ...............123 S.W. 1102 67. Libel ......... ....Deiner v. Star-Chronicle Pub. Co.........................132 S.W.1147-9 69. Libel .Ukman v. Daily Record....... 88 S.W. 64 70. Libel ..Orchard v. Globe Printing Co... 144 S.W. 816 70. Negligence . . .... Applegate v. Q. O. & K. C. R. Co.158 S.W. 384 71. Negligence . .... Rollinson v. Wabash R. Co....160 S.W. 997-9 72. Negligence . ... ... Kane v. St. L. & S. F. R........162 S.W. 246 72. Negligence . ... ... . Hill v. Union Electric Light & Power Co. ..................169 S.W. 360 72. Negligence . ........ . . . . Lyman v. Dale ...............171 S.W. 354-6 79. Negligence . ..... ....Hunt v. St. L. & S. F. R. ......171 S.W. 346 81. Contributory Negligence ... Williams v. K. C. S. R. Co. ....165 S.W. 795 82. Religious Liberty ......... State v. C. B. & Q. R. Co. .....143 S.W. 823-9 88. Law, Logic and New Trial. Star Bottling Co. v. Lou. Pur. Ex. Co. . ...................144 S.W. 777 89. Law, Oratory and Rhetoric.Peltzer v. Gilbert ............169 S.W. 263-4 90. New Trial ...Maplegreen Realty Co. v. Miss. Valley Trust Co. ...........141 S.W. 623 91. Jury System . ..... .... Whiteaker v. C. R. I. & P. R...160 S.W.1013-4 92. Jury System . .... . Simpson v. Witte Iron Wks. Co.155 S.W. 815-9 92. Jury System ... Troll v. Spencer .... ..141 S.W. 859 94. Jury System . .... Flaherty v. St. L. Transit Co..106 S.W. 20 94. Jury System . ... . Dean v. K. C. St. L. & C. R. Co.. 97 S.W. 913 94. Jury System . ... ....Devoy v. St. L. Transit Co..... 91 S.W. 141 95. Matrimony . . Bishop v. Britain Inv. Co......129 S.W. 687 96. Marital Infelicity .... Medlin v. Morris .............148 S.W. 86-9 101. Marital Infelicity ......... Viertel v. Viertel ............ .111 S.W. 582-3 102. Marital Infelicity .........Hynds v. Hynds ............ .161 S.W. 819 102. Exaggeration, Huntsmen, Fishermen ............. Cummings v. Parker .........157 S.W. 633 103. Historic Land Tenures ....Troll v. City of St. Louis......168 S.W. 171-7 106. Habeas Corpus and Per- sonal Liberty . .........Ex Parte Clark ...............106 S.W. 996 106. Habeas Corpus and Per- sonal Liberty . ......... State v. Broaddus ............149 S.W. 477 107. Attorneys' Briefs ......... Johnson v. United Railways of St. Louis . .................152 S.W. 364-71 108. Statutory Construction ....Greene County v. Lydy........172 S.W. 377-85 109. The Law's Delays ........ Adam v. C. B. & Q. Ry. Co.....122 S.W. 1136-7 110. The Law's Delays ........Wilson v. St. Louis Transit Co..135 S.W. 476 216 Case Index Page on Which Quoted 140. Objections .... ......... E. St. L. Ice Co. v. Kuhlman. . 142 S.W. 254-9 140. Objections ................ Cohron v. Polk ...............158 S.W. 610 141. Statutory Construction .... Henry County v. Salmon......100 S.W. 20 141. Statutory Construction ....Clark v. K. C. St. L. & C. R... 118 S.W. 44 142. Statutory Construction .... Bishop v. Britain Ins. Co. .....129 S.W. 670-5 142. Statutory Construction .... Mott v. Morris ...............155 S.W. 437-8 143. Statutory Construction .... Strother v. Barrow ...........151 S.W. 964-5 144. Statutory Construction .... Simpson v. Witte Iron Wks. Co.155 S.W. 817 19 144. Statutory Construction .... In Re Aiken .................171 S.W. 346 144. Moot Court, Etc. .......... State v. Imel .................147 S.W. 993-4 145. Moot Court, Etc. .......... State v. Thomas ..............155 S.W. 402-3 145. Multiplicity of Suits ...... Troll v. City of St. Louis. .....168 S.W. 171-7 146. Verity of Judgment .......Jeude v. Simms ..............166 S.W. 1057-8 147. Court May Change Its Mind.Padgett v. Smith .............103 S.W. 943 148. Judicial Astuteness ....... State v. Mayor, Etc. ..........101 S.W. 108 148 Comity. ......... Hughes v. Winkleman ........147 S.W. 997 149. Interpretation ............ State v. City of St. Louis .....145 S.W. 803 150. Instructions in Chancery ..Lee v. Lee ...................167 S.W. 1032 151. Landmarks of the Law .... Linn County v. Clifton ........172 S.W. 394 152. Attorney . ..... . State v. Standard Oil ......... 91 S.W. 1062 153. Briefs . .Baumhoff v. St. L. & K. R. ....104 S.W. 12 154. Briefs ......... Cook v. Newby ...............112 S.W. 278 156. Briefs ... .........Gass v. Evans ...............149 S.W. 629-30 157. Advice to Young Attorney. Donaldson v. Donaldson .......155 S.W. 793-7 157. Attorney's Lien ........... Whitecotton v. St. L. & H. Ry. Co. . ......... ...157 S.W. 777 157. Brief ..........Sullivan v. Holbrook .........109 S.W. 670 158. Preparation ...............Devoy v. St. L. T. Co. ......... 91 S.W. 141 159. Confidential Communica- tions, Secrecy .......... Smart v. Kansas City .........105 S.W. 722 159. Confidential Communica- tions, Secrecy .......... Epstein v. Pa. R. Co. .........156 S.W. 711 161. Ordinary Care, Negligence. Strother v. Kansas City Milling Co. ...... ...169 S.W. 49-50 162. Ordinary Care, Negligence. Benton v. City of St. Louis....154 S.W. 476-8 163. Trespasser . .............. Whiteaker v. C. R. I. & P. R. R..160 S.W.1012-14 164. Contributory Negligence .. Dyrcz v. Missouri Pac. Ry....-141 S.W. 865 164. Liability. ................ Kelly v. Benas ...............116 S.W. 560 164. Negligence, Mine .........Knorpp v. Wagner ........... 93 S.W. 683-7 165. Ordinary Care ............ Harper v. St. Louis Merchants Bridge Terminal Co. ........ 86 S.W. 102-3 166. Public Elective Office ..... State v. Sheppard ............ 91 S.W. 477 Case Index 217 Page on Which Quoted 167. Public Elective Office ..... Kavanaugh v. Gordon ........149 S.W. 590 167. Public Elective Office .....Gass v. Evans . ..............149 S.W. 634 167. Commons . . ...... State v. Wood ................135 S.W. 934-5 169. Improbabilities ... .....Burnel v. Nester .............101 S.W. 69 170. Cleanliness ..., .....Harkreader v. Vernon County..116 S.W. 526 170. Pie . ...... .....Welch v. Mann . ............. 92 S.W. 103 171. Eggs . ...... .....Wright v. Groom . ...........151 S.W. 467 171. Loss and Gain ...... ...... St. Louis, M. & S. E. R. Co. v. Aubuchon ................. 97 S.W. 868 171. Deceit . ...... Cobe v. Lovan . .............. 92 S.W. 93 172. Contempt . ..C. B. & Q. Ry. v. Gildersleeve.. 91 S.W. 92-6 173. Wills. . Cornet v. Cornet .............154 S.W. 139 174. Wills . ........ .... Powell v. U. R. R. Co. ........164 S.W. 634 175. Wills. ...... Kirk v. Middlebrook ..........100 S.W. 463 176. Idem Sonans........ ..... Akins V. Adams .............164 S.W. 607 177. Eminent Domain .... .....Rivard v. Mo. P. R. Co. ......165 S.W. 772-3 178. Eminent Domain .. . Kansas City V. Woerishoeffer. 155 S.W. 782-8 178. Jurisdiction . ....... ..... State v. Williams ............120 S.W. 752 179. Jurisdiction .............. State v. Fort . ...............108 S.W. 742 180. Adverse Possession ....... McCune v. Goodwillie ........102 S.W.1006 180. Adverse Possession ....... Himmel-Berger v. Harrison Lumber Co. ................154 S.W. 76 180. Adverse Possession .......Hafner Mfg. Co. v. City of St. Louis . ......... ...........172 S.W. 34 181. Real Estate Law .. . Skillman v. Clardy ...........165 S.W. 1056 182. Injunction . .............. Viertel v. Viertel .............111 S.W. 582-3 183. Injunction . ............. . State v. Canty ...............105 S.W. 1084-5 184. Insurance Indemnity ......Breeden v. Frankfort M. A. & P. G. Ins. Co. ..............119 S.W. 606-9 185. Licensee . ................ Glaser v. Rothschild .........120 S.W. 3 186. Stare Decisis ....... .Breeden v. Frankfort M. A. & P. G. Ins. Co. ..............119 S.W. 606-9 187. Stare Decisis ......Nalley v. Home Ins. Co. ......157 S.W. 775 188. Stare Decisis ............ .Kansas City v. St. Louis & Kan. City Land Co. ..............169 S.W. 56-66 189. Boulevard . ..... ...... City of St. Louis v. Handlan. . 145 S.W. 422-3 191. Warranties in Ins. Policies. Matthews v. Modern Woodmen of America . .............139 S.W. 155-6 192. Bills of Exceptions ........State v. Gibson .............. 86 S.W. 177 193. Record; Officer and Dep- uty . ...... ............... Stumpe v. Kopp . ............ 99 S.W.1074 194. Record ......... ...... Bennowfski v. Coerver .......103 S.W. 543 194. Depository Bond ..........Henry County v. Salmon......100 S.W. 20 Lu 218 Case Index Page on Which Quoted 195. Misjoinder . ...... Hudson v. Wright ............103 S.W. 11-13 195. Judicial Notice ........... State v. Mo. P. R. Co. ......... 111 S.W. 504 196. Automobile . ............. Diener V. Star-Chronicle Pub. Co.........................132 S.W. 1147-9 197. Tenancy at Will .......... Idalia Realty & Development Co. v. Norman .............135 S.W. 50 197. The Common People ...... Stonemets v. Head ...........154 S.W. 109-14 197. Pleadings ................State v. Kansas City Gas Co...163 S.W. 856-7 197. Presumption of Honesty ..Hendricks v. Calloway .......111 S.W. 67 198. Precedent . Aiple-Hemmelman R. E. Co. v. Spellbrink . ....... ... 111 S.W. 493 198. Death and Debts .......... Keeney v. McVoy ............103 S.W. 952-4 198. Trial and Appeal .........Kennefick v. Norwich U. Fire Ins. Co. ....................103 S.W. 960 199. Maintenance ............Breeden v. Frankfort M. A. & P. G. Ins. Co. ...............119 S.W. 606-9 200. Fence . ........... .Sanford v. Kern . ...... ...122 S.W.1055 200. Femme Sole . ..... ....... Blake v. Meadows ............123 S.W. 874-6 202. Constitution . . . Ordelheide v. Modern B. of A..125 S.W. 1106 203. Taxes-Historical ......... Decker v. Diemer ............129 S.W. 947 204. Legislative Acts . ........ City of St. Louis v. Myer .....139 S.W. 440 204. Bastards . ................Nelson v. Jones .......... ....151 S.W. 82-5 205. In Vino Veritas .......... Baecker v. Mo. Pac. R. ........144 S.W. 807 206. Equity and Matrimony ....Troll v. Spencer ..............141 S.W. 859 206. Egg, Lawsuit .............Howard v. Scott .............125 S.W. 1158-9 206. Filial Affection ........... Chambers v. Chambers .......127 S.W. 88 ---- - -- - - - - . , -